-1-

CLASSIFICATION OF THINGS
BOOK II: PROPERTY, OWNERSHIP, AND ITS MODIFICATIONS
TITLE I — CLASSIFICATION OF PROPERTY Res Belonging • They have not yet been appropriated
PRELIMINARY PROVISIONS Nullius to • They have been abandoned by the owner w/ the
no one intention of no longer owning them
Property • e.g. fish still swimming in the sea, wild animals, wild
• Civil Code: An object is that which is, or may be, appropriated birds, pebbles lying on the seashore
• Subject in Law: branch of civil law w/c classifies & defines the different kinds Res Belonging • their use and enjoyment are given to all of mankind
of appropriable objects, provides for their acquisition and loss, and in general, Communes to • e.g. the air we breathe, the wind, sunlight, and starlight
treats of the nature & consequences of real rights everyone
Res Belonging • objects, tangible or intangible, w/c are owned privately,
Thing vs. Property Alicujus to either in a collective or individual capacity
• “thing” is synonymous w/ the word “property” someone • e.g. your book, your shares of stock, your parcel of land
• Technically – “thing” is broader in scope for it includes both appropriable &
non-appropriable objects Characteristics of Property
• Property involves not only material objects but also intangible things • utility for the satisfaction of moral or economic wants
(e.g. rights and credits) • susceptibility of appropriation
• individuality or substantivity – it can exist by itself, and not merely as a part
CLASSIFICATION OF PROPERTY of a whole
Mobility & Non- Movable/Personal Property Car
Mobility Immovable or Real Property Land Importance of the Classification of Property into Immovables & Movables
Ownership Public dominion/ownership Rivers • different provisions of the law govern the acquisition, possession, loss &
Private dominion/ownership Fountain pen registration of immovables & movables
Alienability W/in the commerce of man May be the objects of contracts
or judicial transaction Incompleteness of the Classification
Outside the commerce of man Prohibited drugs • there should be a 3rd kind – the “mixed” or the “semi-immovable”
Present property Res existents o refers to movable properties w/c under certain conditions, may be
Existence
Future property Res futurae considered immovable by virtue of their being attached to an
immovable for certain specified purposes
Materiality or Objects w/c can be seen or
Immateriality touched, like the paper on w/c Jurisprudence on the Classification
Tangible/corporeal is printed a P1000 Bangko • under certain conditions, parties to a contract may, by agreement, treat as
Sentral Note personal property that w/c by nature would be real property
Rights or credits, like the credit o based on the principle of estoppel
Intangible/incorporeal represented by a P1000
Bangko Sentral Note Reclassification Conversion
Dependence or Principal
The act of specifying how agricultural lands The act of changing the current use of
Independence Accessory
shall be utilized for non-agricultural uses a piece of agricultural land into some
Capability or Capable of substitution by (e.g. residential, industrial, or commercial) other use as approved by DAR
Substitution Fungible other things of the same Note: a mere reclassification of agricultural land doesn't automatically allow a
quantity and quality landowner to change its use – he has to undergo the process of conversion before he
Incapable of substitution, is permitted to use the agricultural land for other purposes
Non-Fungible hence, the identical thing must
be given or returned The Human Body
Nature or Generic Referring to a group or class • neither real nor personal property, whether dead or alive
Definiteness Specific Referring to a single, unique • it is not even property at all, in that it generally cannot be appropriated
object • while a human being is alive, he cannot be the object of a contract for he is
Whether in the In custodia legis – in the When it has been seized by an outside the commerce of man
Custody of the custody of the court officer under a writ of • he may donate part of his blood, may even sell part of his hair, but he cannot
Court or Free attachment or writ of execution sell his body
“free” property not in custodia legis
 -2-
Organic Donation Act: “An Act Authorizing the Legacy or Donation of All or Part of a Immovable Property: That w/c is firmly fixed, settled, or fastened
Human Body After Death for Specified Purposes” • while in general, immovable property is that w/c is fixed in a definite place,
still there are many exceptions to this general criterion
• Who May Execute a Legacy
o At least 18 years old Paragraph 1: Land, buildings, roads and constructions of all kinds adhered to the soil
o Of sound mind Immovable Movable
• Who may Execute a Donation - Land: best example of immovable - a shovelful of land, since this is no
o Spouse property; its immovable by its very nature longer adhered to the soil
o Son/daughter of legal age (even if land is rented) - a dismantled house and/or materials
o Either parent - buildings: more of less of a permanent of such house
o Brother/sister of legal age structure, substantially adhering to the
o Guardian over the person of the decedent at the time of his death land, & not mere superimpositions on the - Conditions for a house to be the
• Manner of Executing a Legacy land, & provided there is the intent of subject of a chattel mortgage:
o May be made by a will – becomes effective upon a testator's death permanent annexation a. the parties to the contract so agree
w/o waiting for probate of the will - the law doesn't distinguish as to who b. no innocent 3rd party will be
o The legacy may be made to a specified legatee built or owns the building prejudiced
o The testator may designate in his will the surgeon/physical who will - the building is by itself an immovable - one who has so agreed is estopped
carry out the appropriate procedures property from denying the existence of the
• The legacy is binding upon the testator's: - GR: mortgage on a building is a real chattel mortgage
o Executor estate mortgage, & not a chattel mortgage
o Administrator - the nature of the building as real - insofar as execution proceedings are
o Heirs property does not depend on the way the considered, the house would be
o Assigns parties deal w/ it considered real property
o Successors-in-interest - a building would still be considered -
o All members of the family immovable property even if dealt w/
separately & apart from the land
International Sharing of Human Organs or Tissues Registrar of Property
• Shall be made only through exchange programs duly approved by the Dept. of • when parties present to the registrar of property a document of chattel mortgage
Health the registrar must record it as such even if in his opinion, the object of the contract
• Organ bank storage facility: a facility licensed, accredited, or approved is real property
under the law for storage of human bodies or parts thereof • his duties in respect to the registration of chattel mortgages are purely ministerial
• Sec. of Health: shall endeavor to persuade all health professionals, in character, as long as the proper fee has been paid
government & private, to make an appeal for human organ donation
Paragraph 2: Trees, plants, and growing fruits, while they are attached to the land
Interests: Broader and more comprehensive than the word “title” or form an integral part of an immovable
Estate: totality of interest w/c a person has from absolute ownership down to naked Immovable Movable
possession - trees & plants (spontaneous - the moment trees are detached or
Interest in land: the legal concern of a person in the thing/property, or in the right to
products of the soil/planted thru labor) uprooted from the land (exception:
some of the benefits or uses from w/c the property is inseparable
- trees blown by a typhoon still remain uprooted timber, if the land is timber land)
part of the land upon w/c they rest - a sale of growing crops, because when
- growing crops whether on one's land they are sold, it is understood that they
CHAPTER 1: IMMOVABLE PROPERTY or on another's, as long as they are still are to be gathered
attached to the land - once the growing crops have been
Academic Classification of Real Properties - growing crops: “standing crops”, severed, even if left still scattered or lying
By nature e.g. Trees, plants “ungathered fruits”, “growing fruits” about the land
By incorporation e.g. A building
By destination or e.g. Machinery placed by the owner of a tenement on it Paragraph 3: Everything attached to an immovable in a fixed manner, in such a way
purpose for direct use in an industry to be carried on therein that it cannot be separated therefrom without breaking the material or deterioration
By analogy e.g. The right of usufruct, or a contract for public works, of the object
or easements and servitudes, or “sugar quotas” Note: for the incorporated thing to be considered real property, the injury or
breakage or deterioration in case of separation, must be substantial
 -3-
Paragraph 3 Paragraph 4
Cannot be separated from immovable Can be separated from immovable w/o Paragraph 7: Fertilizer actually used on a piece of land
w/o breaking or deterioration breaking or deterioration Movable: fertilizers still in the barn
Need not be placed by the owner Must be placed by the owner, or by his - fertilizers on the ground by wrapped inside some newspapers or any other covering
agent, express or implied
Real property by incorporation Real property by incorporation and Paragraph 8: Mines, quarries, and slag dumps, while the matter thereof forms part
destination of the bed, and waters either running or stagnant
Immovable Movable
Paragraph 4: Statues, reliefs, paintings or other objects for use or ornamentation, - mines, including minerals still attached - when the minerals have been extracted
placed in buildings or on lands by the owner of the immovable in such a manner that thereto - “water” itself
it reveals the intention to attach them permanently to the tenements - waters still attached to or running thru
Immovable Movable soil or the ground
- a fixed statute in the garden of a house - a PC or a picture hanging on a the wall - canals, rivers, lakes, & part of the sea
- a permanent painting on a ceiling - lack of intent to attach permanently - slag dumps: the dirt & soil taken from
- a picture embedded in the concrete a mine & piled upon the surface of the
walls of a house ground. Inside the “dump” can be found
- a rug or carpet fastened to the floor the minerals

Paragraph 5: Machinery, receptacles, instruments or implements intended by the Paragraph 9: Docks and structures which, though floating, are intended by their
owner of the tenement for an industry or works which may be carried on in a building nature and object to remain at a fixed place on a river, lake, or coast
or on a piece of land, and which tend directly to meet the needs of the said industry Immovable Movable
or works - A floating house tied to a shore or - if the floating house makes it a point to
Immovable Movable bank post & used as a residence journey from place to place, it assumes
Essential Requisites: - if the machine is still in the building, but - vessels: they partake to a certain the category of a vessel
1. the placing must be made by the is no longer used in the industry extent of the nature & conditions of real - vessels: should be registered in the
owner of the tenement, or duly conducted therein property because of their value & record of the Collector of Customs at the
authorized legal representative - machinery placed on property by a importance in the world of commerce Port of Entry
2. the industry/works must be carried on tenant (exception: when the tenant - car: a chattel mortgage on a car in
in the building or on the land promises to leave the machinery n the order to affect 3rd persons should not
3. the machines must tend to directly tenement at the end of the lease, or only be registered in the Chattel
meet the needs of said industry or works when he acted only as an agent of the Mortgage Registry but also in the Motor
4. The machines must be essential & owner Vehicles Office
principal elements in the industry, & not - sawmill machineries & equipment
merely incidental installed in a sawmill for use in the Paragraph 10: Contracts for public works, and servitudes and other real rights over
- if the machine is in the building, and it sawing of logs immovable property
is still needed for the industry, but - steel towers or poles of the MERALCO Immovable Movable
separated from the tenement
- real property by analogy, inasmuch as, - the piece of paper on w/c the contract
temporarily, it continues to be real
although they are not material, they for public works has been written
property by incorporation
partake of the essential characteristics of - usufruct of personal property
immovable property - lease of personal property
Paragraph 6: Animal houses, pigeon-houses, beehives, fish ponds or breeding places - the right to the contract
of similar nature, in case their owner has placed them or preserves them with the - real mortgage
intention to have them permanently attached to the land, and forming a permanent - antichresis
part of it; the animals in these places are included - possessory retention
Immovable Movable - usufruct
- houses: constructions of all kinds - when the animals inside the permanent - leases of real property
adhered to the soil animal houses are alienated onerously or - sugar quotas: “improvements”
- animals that are temporarily outside, gratuitously, unless the building or the attached, though not physically, to the
as long as the intent to return is tenement is itself also alienated land
present - a temporary bird cage easily removable,
or w/c may be carried from place to place
 -4-

CHAPTER 2: MOVABLE PROPERTY Money

• Merchandise: commodity subject to forfeiture, pursuant to Central Bank
Article 416: Personal Property Circular 37
• When Money is Not Merchandise: when it is in domestic circulation, money
Par. 1: Those movables susceptible of e.g. a fountain pen, a piano, animals
is legal tender
appropriation which are not included
• When Money is Merchandise: when it is attempted to be
in the preceding article
exported/smuggled, it is deemed to be taken out of domestic circulation
Par. 2: Real property which by any e.g. growing crops for the purposes of the
• w/n money is legal tender, w/n it is merchandise, it is still PERSONAL property
special provision of law is considered Chattel Mortgage Law; machinery placed on
as personal property a tenement by a tenant who didn't act as Art. 418 Classification of Movable Property
the agent of the tenement owner
According to their Consumable – this cannot be used accdg. to its nature w/o its
Par. 3: Forces of nature which are e.g. electricity, gas, light, nitrogen
brought under control by science Nature being consumed
Non-Consumable – any other kind of movable property
Par. 4: In general, all things which e.g. machinery not attached to land nor
can be transported from place to place needed for the carrying on of an industry According to the Fungible – those replaceable by an equal quality and quantity,
without impairment of the real conducted therein; portable radio, a laptop, Intention of the either by the nature of things, or by common agreement
property to which they are fixed a diploma hanging on a wall Parties Non-Fungible – irreplaceable, because the identical objects
must be returned
3 TESTS to Determine whether Property is Movable or Immovable Note: the Civil Code in many instances, uses the words “consumable” and “fungible”
1. Test by Description: if the property is capable of being carried from place to place interchangeably
2. Test by Description: if such change in location can be made w/o injuring the real
property to w/c it may in the meantime be attached CHAPTER 3: PROPERTY IN RELATION TO THE PERSON TO WHOM IT BELONGS
3. Test by Exclusion: if the object is not 1 of those enumerated or included in Art. 415
Property Classified According to Ownership
Sugar Cane PRIVATE Capacity
• must be regarded as PERSONAL property for the purposes of the Chattel (propriedad privado)
Mortgage Law, & also for the purposes of attachment PUBLIC Capacity For Public Use: May be e.g. roads, canals
• the right to the growing of crops mobilizes (makes personal) the crops by (dominio publico) used by ANYBODY
ANTICIPATION - ownership by the For Public Service: may be e.g. national govt buildings,
State in that the used only by duly army rifles, army vessels
Incorporeal Immovables State has control & authorized persons
• intellectual properties – a patent, copyright, the right to invention administration For the Development of e.g. natural resources
- ownership by the National Welfare
Personal Effects public in general
• include such tangible property as applied to a person & cannot include
automobiles, although they indeed are personal property Characteristics of Properties of Public Domain
• are personal property • they can be used by everybody
• not all personal property are “personal effects” • they're outside the commerce of man, & cannot be leased, donated, sold, or
be the object of any contract
Art. 417: Other Kinds of Personal Property o except insofar as they may be the object of repairs/improvements
Par. 1: Obligations and - although the law uses the term “obligations”, the and other incidental things of similar character
actions which have for their same really refers to rights or credits • they cannot be acquired by prescription, no matter how long the possession
object movables or - promissory notes of the properties has been
demandable sums - the right to collect the promissory note • they cannot be registered under the Land Titles Registration Law & be the
Par. 2: of stock of - “stock” – should be understood not in its technical subject of a Torrens Title
agricultural, commercial and sense of being categorized under securities, but in its o if erroneously included in a Torrens Title, the land involved remains
industrial entities, although generic meaning of “participation” property of public domain
they may have real estate - all shares in all juridical persons should be • they, as well as their usufruct, cannot be levied upon by execution, nor can
considered personal property they be attached
- the property right of shares of stock can only be • they may be either real or person property, for it will be noted that the law
exercised/enforced where the corporation is makes no distinction
organized and has its place of business
 -5-
For Public Use
• roads, canals, rivers, torrents, ports, bridges constructed by the State Conversion of Property of Public Domain to Patrimonial Property
• banks, shores, roadsteads • Only the executive and possible the legislative departments have the authority
• others of similar character and power to make the declaration that any land so gained by the sea is not
o public streams necessary for any of the following:
o natural beds of rivers o For purposes of public utility
o river channels o establishment of special industries
o waters of rivers o Coast Guard services
o creeks
o lands thrown up by the sea & formed by accretion upon the shore by Properties of Political Subdivisions
the action of the water, together w/ the adjacent shore Property for PUBLIC USE PATRIMONIAL property
o lands reclaimed from the sea by the Government Cannot be alienated May be alienated
o Manila Bay/coastal area (belongs to the state & used as a waterway) May not be acquired by prescription May be acquired by others thru prescription
o private lands w/c have been invaded by the waters/waves of the sea • Provincial roads • Friar lands
& converted into portions of the shore/beach
• City streets • San Lazaro Estate
o streets, even when planted by persons w/ coconut • Municipal streets • Properties obtained by the Government in
• Squares escheat proceedings
Creek: an arm extending from a river and participating in the ebb and flow of the sea
• Fountains • Those inherited by or donated to the
Shore: that space alternately covered and uncovered by the movement of the tide
• Public waters Government
Torrent: the amount of water w/c in case of heavy rain gathers in deep places or
• Promenades • Rents of buildings owned by the government
canals where it is supposed to flow afterwards
• Public words & public services paid • Municipal-owned waterworks system (but
Reclaimed Lands: the result of intervention of man
for by the political subdivision serves only those who pay charges)
Public Lands: the national domain under the Legislative Power of Congress as has not
Classification of Properties of Provinces/Cities/Municipalities
been subjected to private right or devoted to public use
Acquired by their own funds, in their Held by the political subdivision in trust for
Classification of Public Lands private/corporate capacity the state for the benefit of the inhabitants
• mining – property for the development of national wealth The political subdivision has ownership Subject to the control & supervision of the
• forest - property for the development of national wealth & control state
• agricultural
National Government of the Phil. Government of the Phil
Disposition of Public Lands More restrictive Broader in scope
• lodged exclusively in the Director of lands Does not include local governments or Includes local governments and other
• subject to the control of the Secretary of Agriculture other governmental entities governmental entities
• the President has the power to reserve alienable public lands for a specific Refers only to the Central Gov't
public purpose or service, and to release those reserved
Private Properties other than Patrimonial
Government Lands Public Lands • Individually – rights to private property
• broader in scope • merely a part of • Collectively – ownership by private individuals as co-owners (e.g.
• includes lands devoted to public use or public service government lands corporations, partnerships, foundations, other juridical persons)
• includes public lands before & after they are made
available for private appropriation Muebles/Furniture do NOT include:
• includes patrimonial lands • money, credits, commercial securities, stocks, bonds, jewelry,
scientific/artistic collections, books, medals, arms, clothing, horses or
Roman Catholic Church carriages
• owner of Roman Catholic churches constructed after the Spanish occupation • their accessories, grains, liquids and merchandise
• churches built during Spanish regime are outside the commerce of man • other things w/c don't have as their principal object the furnishing or
because they were sacred – didn't belong to anyone at all ornamenting of a building
• Exception:
Patrimonial Property: The property owned by the State w/c is not devoted to public o From the context of the law the contrary clearly appears
use, public service, or the development of national wealth (wealth owned in private o From the individual declaration, the contrary clearly appears
capacity)

TITLE II — OWNERSHIP
CHAPTER 1: OWNERSHIP IN GENERAL
Art. 427. Ownership may be exercised over things or rights.
Ownership: Independent & general right of a person to control a thing particularly in
his possession, enjoyment, disposition, & recovery, subject to no restrictions except
those imposed by the state/private persons, w/o prejudice to the provisions of law
KINDS OF OWNERSHIP
Full Ownership All rights of an owner
Naked Ownership The right to the use and the fruits has been denied
Sole Ownership Ownership is vested only in 1 person
Co-Ownership Ownership is vested in 2 or more persons
- unity of the property, and plurality of the subjects
- each co-owner is the owner of the whole & at the same
time, the owner of an undivided aliquot part thereof
FULL OWNERSHIP = usufruct + naked ownership
USUFRUCT = full ownership – naked ownership
NAKED OWNERSHIP = full ownership - usufruct
Art. 428. The owner has the right to enjoy and dispose of a thing, without other
limitations than those established by law. The owner has also a right of action against
the holder and possessor of the thing in order to recover it.
RIGHTS OF AN OWNER UNDER ROMAN LAW
Jus Possidendi - The right to hold a thing or enjoy a right
(Right to Posses) - the thing/right is subject to the control of my will
- includes the right to exclude anyone from the enjoyment
Jus Utendi and disposal thereof
(Right to Use) - the owner/possessor may use force as may be reasonable
necessary to repel/prevent an actual/threatened unlawful
physical invasion/usurpation of the property
- the owner of a thing cannot make use thereof as to injure
the rights of a 3rd person
- the right to 3 kinds of fruits: natural, industrial, & civil
Jus Fruendi - only owners, & not mortgagees, can claim damages for
(Right to the Fruits) injury to the fruits of a piece of land & for injury caused by
the deprivation of possession
Jus Abutendi - Also the right to transform/abuse
(Right to Consume)
Jus Disponendi - includes the right to donate, to sell, to pledge or
(Right to Dispose) mortgage
Jus Vindicandi - the owner has a right of action against the holder and
(Right to Recover) possessor of the thing in order to recover it
- every possessor has right to be respected in his
possession, and should he be disturbed therein he shall be
restored to possession by means established by law
- transmissible to the heirs/assignees
-6-
RIGHTS OF AN OWNER UNDER THE CIVIL CODE
Right to Possess
Right to ENJOY Right to Use
Right to the Fruits
Right to DISPOSE Right to Consume/Destroy/Abuse
Right to Encumber/Alienate
Right to RECOVER/VINDICATE
ACTIONS TO RECOVER
Recovery of PERSONAL Property Replevin
Recovery of REAL Property Forcible Entry
Unlawful Detainer
Accion Publiciana
Accion Reivindicatorio
Application for Replevin
1) Applicant for replevin must show by his own affidavit or that of some other person
who personally knows of the facts:
- the applicant is the owner of the property claimed, or is entitled to the possession
- property must be particularly described
- the property is wrongfully detained by the adverse party
- he must allege the cause of detention according to his best knowledge, info & belief
- actual market value of the property
- it has not been distrained or taken for a tax assessment or fine pursuant to law or
seized under a writ of execution or preliminary attachment or placed under custodia
legis or if so seized, that it is exempt from such seizure or custody
2) applicant must also give a bond, executed to the adverse party in double the value
of the property, for the return of the property to the adverse party if such return
thereof be adjudged, & for the payment to the adverse party of such sum as he may
recover from the applicant in the action
3) the court then orders the sheriff to take such property into his custody
When Replevin Will not Lie:
• property was taken for a tax assessment or fine pursuant to law
• property was seized under a writ of execution
• property was seized under a preliminary attachment
• property was placed under custodia legis
Restoration of Property taken by Writ of Replevin (5-day period)
• Defendant must post a counterbond in double the value of said property
• Defendant serve plaintiff w/ a copy thereof
Writ of Replevin
• may be served anywhere in the Philippines
• Cannot be directed against the lawful owner
• Property seized will not to be delivered immediately to the plaintiff
“Move in the premises”
• The parties are obliged to inform the Court of developments pertinent to the
case w/c may be of help to the Court in its immediate disposition
 FORCIBLE ENTRY UNLAWFUL DETAINER ACCION PUBLICIANA ACCION REIVINDICATORIA
-7-
A summary action to recover material The action that must be brought when Intended for the recovery of the Action to recover ownership
or physical possession of real property possession by a landlord, vendor, vendee better right to possess over real property
Definition when a person, originally in or other person of any land or building is
possession was deprived thereof by being unlawfully withheld after the
force, intimidation, strategy, threat or expiration or termination of the right to
stealth hold possession
GR: 1 year from dispossession GR: 1 year from the time possession GR: 10 years (otherwise the real Ordinary Prescription:
Exception: in case of strategy/stealth, becomes unlawful right of possession is lost) (good faith & just title is
1 year from time of discovery of 1 yr from expiration of lease: if there is required) 10 years
a
Prescriptive strategy/stealth fixed period for the termination of the Extraordinary
lease, Prescription
:
Period the lease ends automatically w/o need of 30 years
any demand Based on an Implied Trust:
1 yr from date of demand to vacate: 10 years
reason for ejectment is non-payment of Based on Fraud: 4 years from
rent
or non-fulfillment of conditions of the lease discovery of the fraud
Issue - Possession de Facto - Possession de Facto - Possession de jure - Ownership
Involve - Material /Physical possession - Material /Physical possession - Better right of possession - (Evidence of title or mode
d - (Ownership is not involved) - (Ownership is not involved) may be introduced)
Nature of - summary - summary Proceedings in personam
Proceedin - actions quasi in rem: proceedings in - actions quasi in rem: proceedings in
g personam involving real property personam involving real property
- Justice of Peace Courts - Justice of Peace Courts CFI/RTC CFI/RTC where the real estate is
- Municipal Courts - Municipal Courts - deprivation of possession has situated
lasted more than 1 year
Note: if the question of ownership Note: if the question of ownership really
Court w/ really becomes essential in becomes essential in determining the
Jurisdictio determining the question of question of possession, the justice of
n possession, the justice of peace would peace would no longer have jurisdiction
no longer have jurisdiction for the for the issue has changed
issue has changed
Note: if demand to vacate is essential but
is not made, the case should be brought
before the RTC & not the justice of peace
* prior physical possession of plaintiff * prior physical possession of not always Kinds of Accion Publiciana GR: adjudication by the court
essential essential 1) Entry not obtained through of ownership in favor of 1
FISTS – can be brought as soon party doesn't necessarily
* possession unlawful from the start * possession was lawful in the beginning, as the dispossession takes place include the adjudication of
but became unlawful afterwards w/o waiting for the lapse of 1 possession over the same
Facts to be stated in the complaint: Complaint must show: year Exception: when the party
That one in physical possession of a - the withholding of possession, or the 2) the 1 year period for bringing defeated has not been able to
land/building has been deprived of said refusal to vacate, is UNLAWFUL forcible entry or unlawful show any right to possess
Other Notes possession through another thru: detainer has already expired – independent of his claim of
- force Demand to vacate: action may be brought after the 1 ownership
- intimidation - must be absolute, not conditional year period
- threat - must be stated in the complaint when it
- stealth was made
- strategy - that such demand had been served
personally, or by serving written notice, or
by posting such notice
 -8-
WRIT OF INJUNCTION Burdens of Ownership
• “res perit domino” – the owner bears the loss of the property owned by him
GR: A person deprived of his possession of real/personal property is ordinarily not
allowed to avail himself of the remedy of preliminary preventive or prohibitory Police Power
injunction, the reason being that the defendant in actual possession is presumed • The right of the State to regulate and restrict personal and real property rights
disputably to have the better right for the common weal
• The power to prescribe regulations to promote the health, morals, education,
Exceptions: good order or safety, and the general welfare of the people
• A limitation on the right of ownership in the sense that property may be
1) Original case of forcible entry interfered w/, even destroyed, if the welfare of the community so demands it
• He may, w/in 10 days from the filing of the complaint, present a motion to • Financial compensation is not given to the owner
secure from the competent court, in the action for forcible entry, a writ of
preliminary injunction to restore him in possession Police Power in Whom Vested
• The court shall decide the motion w/in 30 days • Congress of the Philippines
• Municipal corporations
2) Appealed case of unlawful detainer • President of the Philippines (during periods of emergency)
• The period of 10 days shall be counted from the time the appeal is perfected
Limitations on the Exercise of Police Power
3) If an owner, still in possession, desires to prevent repeated or further intrusions into • The interests of the public in general, as distinguished from a particular class,
his property by a stranger require such interference
• The means should be reasonable necessary for the accomplishment of the
4) If a person in possession of the real property in concepto de dueno for over a year purpose, and not unduly oppressive upon individuals
(possession de jure), is disturbed by acts similar to the previous #
Power of Taxation
WRIT OF POSSESSION • Inherent power of the State to raise income/revenue to defray necessary
• An order directing the sheriff to place a successful registrant under the governmental expenses for a public purpose
Torrens system in possession of the property covered by a decree of the Court • Thru taxation, the cost of governing is apportioned among those who in some
• Cannot be used either against the party in whose favor the land has been measure are privileged to enjoy benefits & most consequently bear the
decreed to be registered, or against his representatives or successors-in- burdens of government
interest • A limitation on the right of ownership
• May be issued only against the person defeated in the registration case
• If a writ of possession implies the delivery of possession of the land to the Who has the Power to Tax
successful litigant, a writ of demolition must likewise issue • Congress
• The right to demand the writ of possession never prescribes • May be delegated to municipal corporations
• The issuance of the writ of possession is summary in nature

LIMITATIONS ON OWNERSHIP TAXATION EMINENT DOMAIN

“the welfare of the people is the supreme law of the land” Compensation Generally a better government Financial or monetary
“Use your property so as not to impair the rights of others” (w/ consequent protection to compensation
Imposed by the STATE Police power life, liberty and property
Power of Taxation Persons Operates on a class, according Operates on an individual
Power of Eminent Domain Involved to some principle of (owner of the property)
Imposed by the LAW Legal Easement of Waters apportionment
Legal Easement of Right of Way Nature of the Paid by citizen as his Allowed by the citizen, but NOT
Imposed by the OWNER The owner leases his property to another, said Duty CONTRIBUTION to a public as a contribution to a public
owner in the meantime cannot physically occupy burden burden
the premises Manner of Generally no complaint is filed A property owner is made a
The owner pledges his personal property, he has in Exercise in court. It is the public that, in defendant in the complaint
the meantime to surrender its possession general, is required to pay (expropriation is a forced sale)
Imposed by the GRANTOR The donor may prohibit the donee from partitioning
the property for a period not exceeding 20 years
 -9-
TAXATION POLICE POWER
Purpose To raise revenue To promote public welfare by Art. 433. Actual possession under claim of ownership raises disputable presumption of
system of regulation ownership. The true owner must resort to judicial process for the recovery of the
Compensation Taxpayer is compensated by Citizen's compensation is more property.
obvious and apparent benefits or less intangible, and idealistic
realization that society has in Requirements to Raise a DISPUTABLE PRESUMPTION OF OWNERSHIP
some way benefited • Actual possession
Amount Paid May be small or big (courts Fee paid is just enough to • Claim of ownership
cannot decree the amount paid cover necessary expenses for
as unreasonable regulation or inspection Note: this article applies to both immovable and movable property

Art. 429. The owner or lawful possessor of a thing has the right to exclude any person Art. 434. In an action to recover, the property must be identified, and the plaintiff must
from the enjoyment and disposal thereof. For this purpose, he may use such force as rely on the strength of his title and not on the weakness of the defendant's claim.
may be reasonably necessary to repel or prevent an actual or threatened unlawful
physical invasion or usurpation of his property. Requisites in an Action to Recover

Doctrine of Self-Help 1) Property must be identified

• The right to counter force w/ force
• Self-defense includes not only defense to man's person but also that of his
rights, including the right to property
Art. 430. Every owner may enclose or fence his land or tenements by means of walls,
ditches, live or dead hedges, or by any other means without detriment to servitudes
constituted thereon.
Fencing of Land or Tenements
• While a person may have the right to fence his estate, still he should not
impair the servitudes or burdens constituted thereon
Art. 431. The owner of a thing cannot make use thereof in such manner as to injure the
rights of a third person.
• Boundaries of the land sought must be proved
2) Reliance on title of the plaintiff & not the weakness of defendant´s
title/claim
• If claims of both plaintiff & defendant are weak, judgment must be for the
latter, being in possession, is presumed to be the owner, and cannot be
obliged to show or prove a better title
• Evidence to show ownership:
o Torrens certificate
o Titles granted by the Spanish Government
o Long and actual possession
o Occupation of a building for a long time w/o paying rentals therefore
o Testimony of adverse and exclusive possession of ownership
corroborated by tax declaration of properties, payment of taxes, and
deeds of mortgage

Note: Nuisances may be abated judicially or extra-judicially, and one responsible for
the existence or continuation of a nuisance can be held liable by those who may suffer
injury thereby
Art. 432. The owner of a thing has no right to prohibit the interference of another with
the same, if the interference is necessary to avert an imminent danger and the
threatened damage, compared to the damage arising to the owner from the
interference, is much greater. The owner may demand from the person benefited
indemnity for the damage to him.
Art. 435. No person shall be deprived of his property except by competent authority
and for public use and always upon payment of just compensation.
Eminent Domain
• the right to acquire private property for public use upon payment of just
compensation
• A limitation on the right of ownership, & may be exercised even over private
properties of cities and municipalities, and even over lands registered w/ a
Torrens tile

State of necessity Eminent Domain Expropriation

• Considered a justifying circumstance refers to the right refers to the procedure through w/c the right is exercised
• A person who, in order to avoid an evil/injury, does an act w/c causes damage
to another does not incur criminal liability provided that the following Who Can Exercise Power of Eminent Domain
requisites are present • National Legislature
o The evil sought to be avoided actually exists • Local governments
o The injury feared be greater than that done to avoid it • Public entities
o There be no other practical and less harmful means of preventing it • Public utilities

Essential Requisites of Eminent Domain
• taking by competent authority
• observance of due process of law
• taking for public use
• payment of just compensation
Valid Taking: Elements
• The expropriator must enter upon the private property
• Entrance must not be for a momentary period';' entrance must be permanent
• The entry must be under warrant or color of legal authority
• The property must be devoted to public use
• The utilization of the property must be in such a way as to oust the owner and
deprive him of all beneficial enjoyment of the property
Taking: when the owner is deprived or dispossessed of his property, or there is
practical destruction or a material impairment of the value of his property, or when he
is deprived of the ordinary use thereof
Competent Authority
o authority as of right – the State
o authority by virtue of a grant – persons/corporations offering public services
Examples of Competent Authority
1) National Government (thru the President of the Philippines)
2) City of Manila (thru the Municipal Board w/ the Mayor´s approval)
3) Provinces (thru the Provincial Board w/ the approval of the Exec. Sec. of the
President)
4) Municipalities (thru municipal councils w/ the approval of the Exec. Sec. of the
President)
5) Public Corporations (thru the Board of Directors, provided there is prior
government approval)
6) The Manila Railroad Co.
Due Process thru Proper Expropriation Proceedings
7) A notice to the owner of the property
8) A full opportunity to present his side on w/n the purpose of the taking is
public; or w/n the government reasonably needs the property
9) Such other procedural requisites as may be prescribed under the law
GR: Before there can be expropriation, there must 1st be instituted proceedings in
court. An entity can be held liable for damages for unlawful trespass if the proper
procedure has not 1st been resorted to
Exception: This will not apply if the owner of the property is guilty of estoppel (e.g. if
he allowed the entity to make use of the land, and incur expenses thereon w/o making
any objection to the unauthorized taking
Expropriation Confiscation
requires due process of law does away w/ due process; no compensation is given
Abandonment of Proceedings
• When in the course of the expropriation proceedings, it is realized that there is
no more need for the property, it is permissible to abandon the proceedings,
- 10 -
but the landowner must be indemnified for all losses or prejudice caused him
in case the land had been in the meantime possessed by the plaintiff
Old Concept vs. New Concept of Public Use
1. Old concept: the property must actually be open to use by the general public
2. New concept: public advantaged or benefit or that it is intended to contribute
to the general welfare and prosperity; all that is needed is reasonable
necessity, NOT absolute necessity
GR: w/n any specific or particular use is a public one is ultimately a judicial question
Exception: If Congress has specifically allowed expropriation of realty for a designated
or specified public purpose, the courts of justice are not allowed to inquire into the
necessity of that purpose
Examples of Public Use
10) Market sites & market stalls
11) Military and aviation purposes
12) Roads, streets, public buildings, school-houses, cemeteries, artesian wells
13) Land needed by railroad companies for their railroad
Just Compensation
• Fair and full equivalent value of the loss sustained
• just & complete equivalent of the loss of w/c the owner of the thing
expropriated has to suffer by reason of the expropriation
• Market value PLUS consequential damages
• Value of the property at the time of the taking
• payment of the land w/in a reasonable period of time from its taking
• need not by in money, but must be in some form that embodies certainty of
value & of payment
• note: the claim for compensation may prescribe
Rules for Computing Just Compensation
1. General Rule: taking coincides w/ the filing of the complaint for expropriation
a. Basis: the value of the property at the time of the filing of the complaint
b. Same rule if complaint is made prior to the entry
2. Exception: entry is made prior to filing of complaint
a. Basis: value of the property at the time of the entry or taking (and not
from the filing of the complaint) plus legal interest
b. Such would give undue incremental advantages to the landowner arising
from the use by the gov't of the said property
Factors Affecting Just Compensation
• Location
• Time of sale
• Topographical features of land
• Permanent improvements thereon
• Ready accessibility to the streets and roads in the vicinity
• Incidental/Consequential Damages
o Injuries to adjoining portions of the land
o Demolition/destruction of buildings or houses on the land
o Depreciation caused to the remaining property

Factors NOT affecting Just Compensation
1. Speculative benefits
2. Improvements on expropriated property (must be borne by the expropriator)
Evidence of Market Value
• The rental value as the basis
• The assessed value
• What a testifying witness would demand for his property under the same
conditions
• Deeds of sales of property in the same community
• That w/c is declared by Provincial/City Assessor, or that declared by the
taxpayer himself, whichever is lower
If government does not pay: suit may be brought against the Auditor General, if
payment is refused by him
Effects of Expropriation on the Ownership of the Property Expropriated
3. Ownership: transferred only when payment of just compensation w/ proper
interest had been made
a. Whether real or personal, tangible or intangible
4. GR: payment of just compensation must 1st be made before possession or
occupation may even be transferred, otherwise the court shall restore the
owner in his possession
a. Exception: in some emergencies, the government may immediately
get the property, occupy & possess it, and pay for the property later,
but the gov't must reimburse the former owner for the taxes that the
latter may have paid for the real properties
5. When the property expropriated is no longer needed for the public use it was
originally intended:
a. Grant of full ownership – he remains the owner even after the need
has disappeared
b. Grant of conditional ownership – that ownership would revert to the
original owner
Ordinary Expropriation: Taking for public use
Extraordinary Expropriation
6. Taking for private use
7. Although there is still a connotation of public use: for the benefit of certain
individuals (Art. 13, Sec.4)
8. Agrarian reform program: right of farmers & regular farmworkers, who are
landless, to own directly and collectively the lands they till, or in case of other
farmworkers, to receive a just share of the fruits thereof
9. Purpose: social justice to the end that public welfare will be enhanced
10. Lands covered: big landed estates (exception – small estates may be
expropriated, provided that a serious social problem or conflict exists therein)
Exhaustion of Administrative Remedies
11. Applies only to controversies arising out of the disposition of disposable public
lands, and NOT to cases involving land that was originally owned by private
parties and was later acquired by the Government for the purpose of reselling
them to bona fide tenants or occupants
- 11 -
Expropriation will not prosper for the following reasons
12. Ordinary expropriation is not the remedy, for the purpose is not a public one
13. Granting the purpose to be public, still the alleged public purpose of benefiting
some tenants, fades into insignificance in comparison w/ the preparation of
young men & women for the useful citizenship & eventual gov't service
14. Extraordinary expropriation would not prosper because the persons occupying
the site are not bona fide tenants thereof
15. What the law authorized was a purchase, not an expropriation
16. Even granting that the extraordinary expropriation was allowed, the same
would be unconstitutional for the land is small
Sale Expropriation
Voluntary - If an owner is willing to sell his property to the gov't, and Involuntary
the price is mutually agreed upon, it is not essential to institution
condemnation proceedings
Power of Eminent Domain Superior to Non-Impairment Clause
17. GR: The existence of a contract between parties cannot prevent expropriation
just because the obligation of contracts would be impaired
18. Exception: when the gov't itself is a party to the contract of sale, it cannot
afterwards repudiate the contract it had voluntarily entered into & then
institute expropriation proceedings
Note: Expropriation only lies when it is made necessary by the opposition of the owner
to the sale, or by the lack of any agreement as to the price.
2 Stages in Expropriation Proceedings
1. Determination of legality
a. Authority of the plaintiff to exercise the power of eminent domain
b. Propriety of its exercise in the context of the facts involved in the suit
2. Determination of just compensation
a. Assistance of not more than 3 commissioners
PD 42: removed the discretion of the court in determining the provisional value. What
is to be deposited is an amount equivalent to the assessed value for taxation purposes
Urban Land Reform Zone
• The right of 1st refusal applies only to legitimate tenants who have resided for
10 years or more on the leased land (doesn't apply to apartment dwellers)
Art. 436. When any property is condemned or seized by competent authority in the
interest of health, safety or security, the owner thereof shall not be entitled to
compensation, unless he can show that such condemnation or seizure is unjustified.
Seizure as an Exercise of Police Power
• Basis: “the welfare of the people is the supreme law of the land”
• Property may be seized/condemned by the government w/o any financial
compensation
• Police power can also refer to total destruction, provided that
o Public interest is served
o The means used are not unduly harsh, abusive, or oppressive

Abatement of Nuisances
• Public Nuisance: affects a community or a considerable number of persons
• Private Nuisance: not public
• Nuisance per se: nuisance under all circumstances
• Nuisance per accidens: a nuisance only under certain circumstances
Art. 437. The owner of a parcel of land is the owner of its surface and of everything
under it, and he can construct thereon any works or make any plantations and
excavations which he may deem proper, without detriment to servitudes and subject to
special laws and ordinances. He cannot complain of the reasonable requirements of
aerial navigation.
Surface Right of a Land Owner
• If a person owns a piece of land, he also owns its surface, up to the
boundaries of the land, w/ the right to make thereon allowable constructions,
plantings, and excavations, subject to
o Servitudes/easements
o Special laws (e.g. Mining Law)
o Ordinances
o Reasonable requirements of aerial navigation
o Principles on human relations
Regalian Doctrine to be Observed
• State ownership of mines & natural resources
• Mines discovered underneath the land should belong to public domain
inasmuch as they are properties for the development of our national wealth
• Reserves to the State all natural wealth that may be found in the bowels of
the earth even if the land where the discovery is made be private
Art. 438. Hidden treasure belongs to the owner of the land, building, or other property
on which it is found.
Nevertheless, when the discovery is made on the property of another, or of
the State or any of its subdivisions, and by chance, one-half thereof shall be allowed to
the finder. If the finder is a trespasser, he shall not be entitled to any share of the
treasure.
If the things found be of interest to science of the arts, the State may acquire
them at their just price, which shall be divided in conformity with the rule stated.
Where Hidden Treasure May be Found
• Land
• Building
• Other property
Treasure Found on One’s Property
• If one finds a hidden treasure in his house, he alone owns the treasure
Treasure Found on Another’s Property
• For the finder to be entitled to ½, the discovery on another's property must be
“by chance”
• There must be no purpose or intent to look for treasure
- 12 -
When Finder/Owner is Married
• The share belongs to the conjugal partnership
Rights of a Usufructuary over the Hidden Treasure Found on Land He is Using
• The usufructuary does NOT get his share
• If he found the treasure, he gets half as finder
• If another person found it, such person gets half as finder, and the naked
owner gets the other half as owner
Finder is a Paid Laborer of the Landowner
• If he discovered the property by chance, he gets half
• If he had been employed precisely to look for the treasure, eh will get nothing
insofar as the treasure is concerned; he will only get his wages/salary
Trespasser
• One prohibited to enter, or not to enter, or not given authority to enter
• A trespasser who discovers hidden treasure is not entitled to any share of it
• If a person lawfully allowed to enter discovers the treasure, but doesn't reveal
the fact of discovery, he does not thereby become a trespasser, in view of the
permission to enter; hence he is entitled to his share
Treasure Hunts: An express search for hidden treasure
Art. 439. By treasure is understood, for legal purposes, any hidden and unknown
deposit of money, jewelry, or other precious objects, the lawful ownership of which
does not appear.
Requisites in the Definition of Hidden Treasure
• Hidden and unknown deposit
• Consists of money, jewelry or other precious objects
• Their lawful ownership does not appear
Precious Objects Deliberately Hidden
o If deliberately hidden by the owner, precious objects cannot be considered
hidden treasure even if discovered by anther as long as the true owner can
prove his ownership
o This is not abandoning his property because he intended to return to it
o If the true owner has forgotten where he kept the treasure and has given up
hope of ever recovering it, the object may now be appropriated by another
since it has already become “abandoned property”
o If the true owner has not yet abandoned the property, the same cannot be
acquired by “occupation” and cannot properly be considered “hidden treasure”
Death of Lawful Owner
1) If the ownership of the treasure is known, but the owner is already dead, the
same will not be considered “hidden treasure”, and must therefore go to the
owner's rightful heirs
2) If the only legal heir left is the state, the treasure will appertain to the State's
patrimonial property
 - 13 -

CHAPTER 3: RIGHT OF ACCESSION Modes of Acquiring Ownership

GENERAL PROVISIONS 1. occupation
2. intellectual creation
Art. 440. The ownership of property gives the right by accession to everything which is 3. law
produced thereby, or which is incorporated or attached thereto, either naturally or 4. donation
artificially. 5. succession
6. tradition, as a consequence of certain contracts
Accession: the right of a property owner to everything w/c is: 7. prescription
• Accession discreta – produced thereby
• Accession continua/accession non-interrumpida – incorporated or attached Accession is NOT a mode of acquiring ownership
thereto, either naturally or artificially • accession presupposes a previously existing ownership by the owner over the
o Accession natural – natural accession principal
o Accession artifical/industrial – artificial accession • accession is a right implicitly included in ownership w/o w/c it will have no
basis or existence
Other Definitions of Accession • it is 1 of the attributes or characteristics w/c will make up the concept of
• It is the right of an owner of a thing to the products of the said thing as well dominion or ownership
as whatever is inseparably attached thereto as an accessory
• That by w/c property is given to a person in addition to what said person Reasons behind Accession
already possesses, said additional property being the result of natural • to the fruits – justice, pure and simple, for one who owns a thing should justly
increase, like land, by deposit of a river, or houses, when built on one's own enjoy its fruits
land, or the young of animals • for attachment or incorporation – economic convenience is better attained in a
• The right w/c ownership of property gives over everything w/c the same state of single ownership than co-ownership
produces, or w/c is attached or incorporated thereto, naturally or artificially • natural justice demands that the owner of the principal or more important
thing should also own the accessory

CLASSIFICATION OF ACCESSION Right to Accession Generally Automatic

Accession Discreta 1. natural fruits • it requires not prior act on the part of the owner of the principal
(To the Fruits) 2. industrial fruits
3. civil fruits SECTION 1. - Right of Accession with Respect to What is Produced by Property
Accession Industrial
- building Art. 441. To the owner belongs:
- planting (1) The natural fruits;
- sowing (2) The industrial fruits;
1. w/ reference to Accession Natural (3) The civil fruits.
real property - alluvium Art. 442. Natural fruits are the spontaneous products of the soil, and the young and
- avulsion other products of animals.
- change of course of rivers Industrial fruits are those produced by lands of any kind through cultivation or labor.
Accession Continua - formation of islands Civil fruits are the rents of buildings, the price of leases of lands and other property and
(Attachment or Adjunction/Conjunction the amount of perpetual or life annuities or other similar income.
Incorporation) - engrafment - inclusion
- attachment - soldadura GR: the owner of land owns the fruits
- weaving - tejido Exceptions (when it is not the owner who owns the fruits):
- painting - pintura 1. possessor in good faith of the land (he owns the fruits already received)
2. w/ reference to - writing - escritura 2. usufructuary
personal property 3. lessee gets the fruits of the land (the owner gets the civil fruits in the form f
Mixture rentals)
- confusion - liquids 4. in the contract of antichresis, the antichretic creditor gets the fruits, although
- commixtion - solids said fruits should be applied 1st to the interest, if any is owing and then to the
Specification principal amount of the loan
 - 14 -
1. Spontaneous products of the soil E.g. herbs, common grass Art. 444. Only such as are manifest or born are considered as natural or industrial
NATURAL (human labor does not intervene) fruits.
FRUITS 2. the young & other products of E.g. chicks & chicken eggs, With respect to animals, it is sufficient that they are in the womb of the
animals horse manure, milk, wool mother, although unborn.
Those products by land of any kind e.g., Lanzones, palay & corn,
INDUSTRIAL through cultivation or labor zacate, all kinds of cultivated Annual Crops Perennial Crops
FRUITS vegetable Deemed manifest/existing the moment their Deemed to exist only when they
▪ Rent of buildings A dividend, whether in the seedlings appear from the ground although actually appear on the trees.
▪ price of leases (rentals) of lands form of cash or stock, is the rains haven't yet actually appeared
and other property income or fruits, because it is e.g. cereals/grains/rice/corn/sugar e.g. oranges/apples/mangoes/coconuts
▪ the amount of perpetual or life so declared out of the profits
CIVIL annuities or other similar income of a corporation & not out of Civil Fruits Natural & Industrial Fruits
FRUITS (but not a bonus granted as a the capital Accrue daily and therefore considered in the While still growing, they are real
reward or as compensation to a
category of personal property property
person who mortgaged & thus Can be pro-rated Ordinarily cannot be pro-rated
risks his land to secure another's
indebtedness)
Animals
1. The young of animals are already considered existing even if still in the
Note: Cultivated trees in themselves are not fruits in the juridical sense for they are
maternal womb
really immovables as long as they are still attached to the land, w/c may themselves
2. But doubt may arise whether they are already in the womb or not
produce fruits. However, we may consider the said trees as fruits when they are
3. Manresa: they should be considered existing only at the commencement of
expressly cultivated or exploited to carry on an industry.
the maximum ordinary period of gestation
Offspring of Animals when the Male & Female Belong to 2 Different Owners
• the owner of the female was considered also the owner of the young, unless
there is a contrary custom or speculation SECTION 2. - Right of Accession with Respect to Immovable Property
• the calf, as well as its mother, belongs to the owner of the latter, by right of
accretion Art. 445. Whatever is built, planted or sown on the land of another and the
• Rationale: improvements or repairs made thereon, belong to the owner of the land, subject to the
o Oftentimes, it is not known who the male is provisions of the following articles.
o During the pregnancy of the female, its owner its greatly burdened by
the consequential expenses and virtual uselessness of the animal, Sowing Planting
and it is only fair that when the young is born, the owner should gain Each deposit of seed gives rise to Permanent trunks or trees are produced, w/c in
or at least recover his loss merely a single crop or harvest. turn produce fruits themselves. W/o a replanting,
crops will continue to grow every season.
Art. 443. He who receives the fruits has Art. 449. He who builds, plants, or sows
the obligation to pay the expenses made in bad faith on the land of another, loses Basic Principles of Accession Industrial
by a third person in their production, what is built, planted or sown w/o right • To the owner of the principal must belong also the accessions.
gathering, and preservation. to indemnity • The union or incorporation must, w/ certain exceptions, be effected in such a
Owner of land is the owner of the fruits Owner of land is the owner of the fruits manner that to separate the principal from the accessory would result in a
Planter in bad faith Planter in bad faith substantial injury to either.
Owner must reimburse planter in bad Owner need not reimburse planter in bad • He who is in good faith may be held responsible but he should not be
faith faith penalized.
Applies when the crops have already Applies only if crops have not yet been • No one should enrich himself unjustly at the expense of another.
been gathered gathered • Bad faith of 1 party neutralizes the bad faith of the other so both should be
considered in good faith.
Characteristic of Expenses Referred to in Art. 433
• They must have been used for production, gathering or preservation, not for “Whatever is built” – refers to all kinds of constructions w/ a roof, and used as a
the improvement of the property residence, for office, or social meetings, etc.
• They must have been necessary, and not luxurious or excessive.
• They must be commensurate w/ those ordinarily necessitated by the product
 - 15 -

Latin Maxims in Connection w/ Accession Industrial GOOD FAITH BAD FAITH

Accessorium non ducit sed The accessory does not lead but follows its principal. - if he did now know that he - If he makes use of the land or materials
sequitor suum principali had no right to such land or w/c he knows belongs to another.
Accessorium sequitor The accessory follows the nature of that w/c it relates. Builder materials - one who buys land w/o verifying w/n
naturam rei cui accedit Planter - a landowner w/ a Torrens the land belongs to another w/ a Torrens
Aedificatum solo, solo What is built upon the land goes w/ it; o the land is Sower Title beyond the boundaries Title & who subsequently builds on it
cedit. principal, & whatever is built on it becomes the of his property a stated in the - one who is aware of a notice of lis
accessory. certificate of title pendens
- If he did not know that If he allows another to use the materials
Art. 446. All works, sowing, and planting are presumed made by the owner and at his another was using his w/o informing him of the ownership
Owner materials thereof
expense, unless the contrary is proved.
Of the - Granting that he did know,
2 Disputable Presumptions Materials if he informed the user of the
1. the works, sowing & planting were made by the owner ownership thereof & made the
2. they were made at the owner's expense necessary prohibition

When Landowner is in Good Faith, but Owner of Materials is in Bad Faith:

Art. 447. The owner of the land who makes thereon, personally or through another,
1. landowner – exempted from reimbursement & entitled to consequential
plantings, constructions or works with the materials of another, shall pay their value;
damages
and, if he acted in bad faith, he shall also be obliged to the reparation of damages. The
2. owner of materials – lose all right to them (e.g. right of removal, w/n
owner of the materials shall have the right to remove them only in case he can do so
substantial injury would be caused)
without injury to the work constructed, or without the plantings, constructions or works
being destroyed. However, if the landowner acted in bad faith, the owner of the
Presumption: Good faith is always presumed, and upon him who alleges bad faith
materials may remove them in any event, with a right to be indemnified for damages.
rests the burden of proof.

Rights & If landowner acted in If landowner acted in

Art. 448. The owner of the land on which anything has been built, sown or planted in
Obligations GOOD FAITH BAD FAITH
good faith, shall have the right to appropriate as his own the works, sowing or planting,
GR: He becomes the owner GR: He becomes the owner of the after payment of the indemnity provided for in Articles 546 and 548, or to oblige the
of the materials but he must materials but he must pay their value & one who built or planted to pay the price of the land, and the one who sowed, the
Owner of pay for their value damages proper rent. However, the builder or planter cannot be obliged to buy the land if its
Land Who Exception: When they can Exception: the owner of the materials value is considerably more than that of the building or trees. In such case, he shall pay
Uses the be removed w/o destruction decides to remove them w/n reasonable rent, if the owner of the land does not choose to appropriate the building or
Materials of to the work made or to the destruction would be caused. (the trees after proper indemnity. The parties shall agree upon the terms of the lease and in
Another plants, the owner of the materials would still belong to the
case of disagreement, the court shall fix the terms thereof.
materials can remove them. owner of the materials, who will still be
entitled to damages. When one builds, sows, or plants in bad faith on the land of a one in good
Owner of • owner of the materials is • owner of the materials is entitled to faith, the latter is entitled to an option:
the entitled to reimbursement ABSOLUTE right of removal and 1. appropriate for himself the house upon payment of the proper indemnity
Materials (provided he does not damages (w/n substantial injury is a. the landowner becomes indebted monetarily
remove them) caused) b. failure to pay may result in execution
• he is entitled to removal • he is entitled to reimbursement & c. ownership over the thing built/sown doesn't pass to the landowner till
(provided no substantial damages in case he chooses not to after payment has been given
injury is caused remove) d. payment is to be made either on the date fixed by agreement, or the
date fixed by the Court
If landowner wants to return the materials instead of reimbursing their value:
e. builder is entitled to retain the house until he is paid the full
1. if no damage has been made to the materials, or they have not been
indemnities since he is a builder in good faith
transformed – they may be returned, at the landowner's expense
f. builder is not entitled to rents after election by the landowner has
2. if damage has been made or there has been a transformation – they cannot
been made since his possession is no longer that of a possessor in
be returned anymore
good faith
g. basis of reimbursement: current market value at time of payment

2. compel the builder to buy the land upon w/c the house has been built, unless
the value of the land be considerable more than the value of the house
a. landowner has no right to removal/demolition unless after having
selected a compulsory sale, the builder fails to pay for the land
b. if the builder cannot pay for the land, he shouldn't be allowed to
continue using it to the owner's detriment
Note: the option granted to the landowner is not absolute, as when it is impractical for
the landowner to exercise the 1st alternative.
Rationale for Option being Given to the Landowner
1. his right is older
2. by the principle of accession, he is entitled to the ownership of the accessory
thing
Indemnities to be Given
1. necessary expenses – those made for the preservation of the thing or those
w/o w/c the thing would deteriorate or be lost
2. useful expenses – those that augment the income of the thing upon w/c they
are spent, or add value to the property
3. luxurious expenses
When Art. 448 Applies
• when the builder, planter or sower really believes he has the right to build,
plant or sow because he thinks he owns the land. He must therefore, have a
claim of title, he must really be a possessor in good faith.
• even if the land is of public domain. Here, it is the state that can exercise the
option
• when one loses the ownership of the land on w/c he earlier built an apartment
• if as a result of a defective donation, the “donee” constructs in good faith a
building thereon, and if there is no dispute as to ownership of the building, the
courts may apply (even in ejectment cases) Art. 448 to avoid multiplicity of
actions
When Art. 448 does NOT Apply
1. when the builder, planter, or sower doesn't claim ownership over the land, but
possesses it as a mere holder, agent, usufructuary or tenant (he knows that
the land is not his)
a. Exception: if an agricultural tenant whose lease is about to expire,
nevertheless still sows, now knowing that the crops will no longer
belong to him, Art. 448 can be applied.
2. when the builder, planter or sower is not a stranger but a co-owner, even if
later on, during the partition, the portion of the land used is awarded to
another co-owner.
3. when a person constructs a building on his own land, and then sells the land
but not the building to another.
4. when the builder is a belligerent occupant, e.g. Japanese Imperial Armed
Forces, the constructions made by it during the ware are owned not by the
owner of the land but by the Philippines, since the latter emerged victor in the
last war
5. when the owner of the land is the builder, sower or planter who then later
loses his ownership of the land by sale or donation
- 16 -
Rule in case the Landowner Sells/Alienates the Land
3. if the new owner did not pay for the construction, he alone is responsible
because it was he who profited by the accession.
4. if the new owner paid for the construction, the action may still be directed
against him. But he can file a 3rd party complaint against the original owner,
who ultimately will have to pay, since it is unfair to compel the new owner to
pay twice.
Irrevocability of Choice
• once a choice is made by the landowner, it is generally irrevocable
• if the landowner elected to get the building, but is finally unable to pay for the
indemnity or value of the building, she cannot afterwards elect to sell the land
• her monetary obligation to indemnify can indeed be satisfied by a levy of
execution on her properties
Criticisms by Justice JBL Reyes: (on the portion exempting the builder/planter from
being required to pay for the value of the land if it is considerably more valuable than
the building or construction)
• the landowner would be forced to have constructions or plantings w/c he
considers useless
• squatters may be invited
• a “forced lease” may result & this is not good because it would be compulsory
& the Court may not include the lucrum cessans (unrealized profits) as part of
the rent
• the rule is almost equivalent to deprivation of property for the benefit of
another private person, w/o just compensation (contrary to the Constitution)
• since it was the builder/planter who made the mistake, he must bear the
losses resulting from his own actuations, regardless of his good or bad faith
Reply of the Code Commission
• the purpose of the clause is to prevent injustice
• the lucrum cessans may be included in the rent by the courts in case of the
failure of the parties to agree
• no lease is compulsory since the owner is allowed the remedy of appropriaton
Writ of Demolition
• before demolition could be effected, the parties concerned should be given a
chance to be heard concerning the interest they claim to possess on said
properties
• there must be a hearing on the motion and due notice
• the right to hearing includes the right of the party interested to present his
own case & to submit evidence in support thereof

Art. 449. He who builds, plants or sows in bad faith on the land of another, loses what
is built, planted or sown without right to indemnity.
Effect of Building/Planting/Sowing in Bad Faith
• loss of object w/o indemnity
• not entitled to reimbursement
Note: Art. 449 applies only to growing or standing crops, not to gathered crops, w/c
are governed by Art. 443
Art. 450. The owner of the land on which anything has been built, planted or sown in
bad faith may demand the demolition of the work, or that the planting or sowing be
removed, in order to replace things in their former condition at the expense of the
person who built, planted or sowed; or he may compel the builder or planter to pay the
price of the land, and the sower the proper rent.
Art. 451. In the cases of the two preceding articles, the landowner is entitled to
damages from the builder, planter or sower.
3 Alternative Rights of a Landowner When 1 Builds on His Land in Bad Faith
→ get the house w/o paying any indemnity for its value
1 st
→ damages
→ (not obliged to pay expenses for preservation of the house, but of the land)
→ demand the demolition of the house at the builder's expense
2nd
→ damages
3 rd → compel the builder to buy the land, whether or not the value of the land is
considerably more than the value of the house
→ damages
If you plant & grow crops on the farm of your neighbor knowing fully well that the
farm is not yours, what are your rights w/ reference to the crops if your neighbour is
in good faith?
If crops have been gathered: If crops have not yet been gathered:
- you have to return the value of the - you completely forfeit them in favour of the
crops, or owner of the land, w/o right to indemnity
- return the crops themselves minus - but you have the right to be indemnified for
the expenses essential for their the necessary expenses for the preservation
production, gathering & of the land (not of the crops)
preservation
Rule Applicable if Builder is Enemy Country
• an airfield set upon private land by the Japanese Army in the Phil. belongs to
the Republic of the Phil, & not to the owner of the land
• It is wrong to say that the Japanese Army was a possessor in bad faith & that
therefore constructions by said Army belong to the owner of the land by
industrial accession. This is because:
° The rules of the NCC on industrial accession are not designed to
regulate relations bet. private persons & a sovereign belligerent, nor
intended to apply to constructions made exclusively for prosecuting a
war, when military is temporarily paramount
° Int'l law allows temporary use by the enemy occupant of private land
& building for all kinds of purposes demanded by necessities of war
- 17 -
Art. 452. The builder, planter or sower in bad faith is entitled to reimbursement for the
necessary expenses of preservation of the land.
Reimbursement for Necessary Expenses to Preserve the Land
• Reason: the true owner would have borne such expenses anyway, even if
nothing had been built on the land
• “land taxes” are not exactly “necessary expenses” for the preservation for the
land, still they are considered in the category of “necessary expenses” & must
be reimbursed, regardless of the bad faith of the builder, planter or sower
Criticism on Art.452
• Art. 452 is an inducement, rather than a deterrent to building, planting &
sowing on another's land in bad faith
• In places where people own small parcels of land, the land being unirrigated,
the preservation & cultivation mean heavy expenses w/c may be higher than
the value of the land entered into
• A person may just plant/sow on another's land because he expects a higher
compensation than what he can get out of the land entered into
Refutation of the Criticism
• The offended party is still entitled to recover damages
• It is doubtful if irrigation of an unirrigated parcel of land can be considered a
necessary expense for the improvement of the land. It is safer to say that it is
a useful improvement.
Art. 453. If there was bad faith, not only on the part of the person who built, planted or
sowed on the land of another, but also on the part of the owner of such land, the rights
of one and the other shall be the same as though both had acted in good faith.
It is understood that there is bad faith on the part of the landowner whenever the act
was done with his knowledge and without opposition on his part.
When Landowner When Builder/Planter/Sower
is Considered in Bad Faith is Considered in Bad Faith
- whenever an act was done w/ his knowledge & - the building/planting/sowing
w/o opposition on his part was made knowingly by one on
- a person who buys land knowing that a land not belonging to him & w/o
construction had been made thereon by a person authority
other than the owner & who pays only for the land
Art. 454. When the landowner acted in bad faith and the builder, planter or sower
proceeded in good faith, the provisions of article 447 shall apply.
Rule When Landowner is in Bad Faith but the Builder/Planter/Sower is in
Good Faith
• Apply Art. 447 – it is as if the landowner built on his land a house in bad faith
w/ the materials of another; hence:
° The landowner must pay for the value of the house plus damages
because of his bad faith
° If the owner of the materials prefers to remove/destroy the house,
the landowner would still be liable for damages

Art. 455. If the materials, plants or seeds belong to a third person who has not acted in
bad faith, the owner of the land shall answer subsidiarily for their value and only in the
event that the one who made use of them has no property with which to pay.
This provision shall not apply if the owner makes use of the right granted by
the owner makes use of the right granted by Article 450. If the owner of the materials,
plants or seeds has been paid by the builder, planter or sower, the latter may demand
from the landowner the value of the materials and labor.
Rule When 3 Parties are Involved
1. Landowner
2. Builder/Planter/Sower
3. Owner of the Materials
Rights of Owner of Materials
If he acted in BAD FAITH If he acted in GOOD FAITH
- he loses all rights to be indemnified - he is entitled to reimbursement from
- he can be liable for consequential the builder/planter/sower PRINCIPALLY
damages (e.g. when the materials are - in case of insolvency of the B/P/S, the
of an inferior quality) landowner is SUBSIDIARILY liable, if he
makes use of the materials
The Landowner makes use of the materials only if he appropriates the
construction. If he compels the builder to:
1. purchase the land, or
2. demolish the construction, the landowner does not make use of the materials,
hence, he cannot be held subsidiarily liable
If the Owner of Materials (OM) & B/P/S are in Bad Faith, and the Landowner
is in Good Faith, the Landowner can ask damages from both:
1. he may appropriate the house for his own, w/o payment of indemnity for
useful or necessary expenses for the house, but w/ indemnity for the
necessary expenses for preservation of the land
2. demand the demolition of the house at the B/P/S's expense
3. compel the B/P/S to pay the price of the land whether the land is considerably
more valuable than the house or not
→ as between the B/P/S & OM who are both in bad faith, good faith must govern
→ the OM must be reimbursed by the B/P/S, but in case he cannot pay, the landowner
will not be subsidiarily liable, because as to him, the OM is in bad faith
→ if the B/P/S pays, he cannot ask for reimbursement from the landowner, because as
to him, the B/P/S is in bad faith
Art. 456. In the cases regulated in the preceding articles, good faith does not
necessarily exclude negligence, which gives right to damages under article 2176.
Good Faith may Co-Exist w/ Negligence
• it is possible that a person may be in good faith, & also negligent
• in negligence, there is no intent to do wrong
• on the other hand, bad faith presupposes an intent to cause damage or
prejudice
- 18 -
Art. 457. To the owners of lands adjoining the banks of rivers belong the accretion
which they gradually receive from the effects of the current of the waters.
Forms of Accession Natural
1. Alluvium
2. Avulsion
3. Change of course of rivers
4. Formation of islands
Alluvium: the soil deposited or added to accretion the lands adjoining the banks of
rivers, & gradually received as an effect of the current of the waters
Note:
ACCRETION ALLUVIUM
The process whereby the The soil deposited on the estate fronting the river
soil deposited bank; the owner of such estate is the riparian owner
A broader term A narrower term – applies only to the soil deposited on
river banks
Essential Requisites of Alluvium
1. the deposit should be gradual & imperceptible
2. cause is the current of the river (and not due to works expressly designed for
the purpose)
3. current must be that of a river
a. if a lake – the Spanish Law of Waters must apply
b. if the sea – the deposit belongs to the State
4. the river must continue to exist
5. the increase must be comparatively little
Note: it is not necessary that:
• the riparian owner should make an express act of possession, the accession
being automatically his the moment the soil deposit can be seen
• the riparian has completely paid for the value of the riparian estate, as long as
he already had the equitable/beneficial title
Requisites for Accretion to Benefit the Riparian Owner
1. the deposit be gradual & imperceptible
2. it resulted from the effects of the current of the water
3. the land where accretion takes place is adjacent to the bank of a river
Reasons Why Alluvium is Granted the Riparian Owner
1. to compensate him for the loss he may suffer due to erosion or the destructive
force of the water & danger from floods
2. to compensate him because the property is subject to encumbrances & legal
easements
3. the interests of agriculture require that the soil be given to the person who is
in the best position to cultivate the same
4. since after all, it cannot be said w/ certainty from whom the soil came, it may
just as well be logically given to him who can best utilize the property

Accretion on the bank of a lake
Accretion on the bank of an island
formed in a non-navigable river
Accretion on a sea bank
Belongs to the owners of the estate to w/c
they have been added
Belongs to the owner of the island
Belongs to the public domain
ALLUVIUM
The deposit of soil is gradual
Soil cannot be identified
Belongs to the owner of property to w/c
it is attached
- 19 -
AVULSION
Sudden or abrupt process may be seen
Identifiable or verifiable
Belongs to the owner from whose
property it was detached

Torrens Title
• of a portion of land protected by a Torrens Certificate of Title is lost by
alluvium, the registered owner is NOT protected by the registration of said
portion; he loses said portion
• an alluvial deposit does NOT automatically become registered land simply
because the lot w/c receives it is covered by a Torrens Title
• in order that alluvial property may be entitled to protection of
imprescriptibility, the same must be placed under the operation of the Land
Registration Law
• an unregistered alluvial property is therefore subject to acquisition through
prescription by 3rd persons
Art. 458. The owners of estates adjoining ponds or lagoons do not acquire the land left
dry by the natural decrease of the waters, or lose that inundated by them in
extraordinary floods.
River: a natural stream of water, a greater volume than a creek or rivulet flowing, in a
more or less permanent bed or channel, between defined banks or walls, w/ a current
w/c may either be continuous in 1 direction or affected by the ebb & flow of the tide
Creek: a small stream less than a river; a recess or inlet in the shore of a river, & not
a separate or independent stream, though it is sometimes used in the latter meaning
Torrent: a violent, rushing or turbulent stream
Art. 460. Trees uprooted and carried away by the current of the waters belong to the
owner of the land upon which they may be cast, if the owners do not claim them within
six months. If such owners claim them, they shall pay the expenses incurred in
gathering them or putting them in a safe place.
Rule on Uprooted Trees: Original owner has 6 months to claim the uprooted trees

When Art. 458 is Applicable When Art. 458 is Not Applicable Rule if Trees Have Been Transplanted: ownership still pertains to the person who
When the estate adjoins: When the estate adjoins: lost the trees provided that the claim was made property. But the owner of the land
- a pond - a lake upon w/c the trees have been case, does not have to wait for 6 months before he can
- a lagoon - a river temporarily set them aside to make proper use of his own land.
- a creek
- other streams Effect if Claim is Made but Trees are not Removed: An action may still be filed
afterwards for recovery of the trees, provided that the action is brought w/in the period
Pond: a body of stagnant water w/o an outlet, larger than a puddle & smaller than a set by law for prescription of movable property
lake, or like body of water w/ a small outlet • 4 years – ordinary prescription – for the recovery
• 6 months – a condition precedent – for the claim
Lagoon: a small lake, ordinarily of fresh water, & not very deep, fed by floods, the
hollow bed of w/c is bounded by the elevations of the land Art. 461. River beds which are abandoned through the natural change in the course of
the waters ipso facto belong to the owners whose lands are occupied by the new course
Lake: a body of water formed in depressions of the earth; ordinarily fresh water in proportion to the area lost. However, the owners of the lands adjoining the old bed
coming from rivers, brooks, or springs & connected w/ the sea by them shall have the right to acquire the same by paying the value thereof, which value shall
not exceed the value of the area occupied by the new bed.
Art. 459. Whenever the current of a river, creek or torrent segregates from an estate
on its bank a known portion of land and transfers it to another estate, the owner of the Requisites for Art. 461 (Change of River Bed) to Apply
land to which the segregated portion belonged retains the ownership of it, provided 1. the change must be sudden in order that the old river may be identified
that he removes the same within two years. 2. the changing of the course must be more or less permanent, & not temporary
overflooding of another's land
Avulsion: 3. the change of the river bed must be a natural one, i.e., caused by natural
• the process whereby the current of a river/creek/torrent segregates from an forces, & not by artificial means such as those used by private individuals
estate on its bank a known portion of land & transfers it to another estate authorized by government – in w/c case the State may give the old river ed to
• the removal of considerable quantity of earth upon or annexation to the land the persons responsible for the change
or another, suddenly & by the perceptible action of the water 4. there must a definite abandonment by the government
• “the force of water” 5. the river must continue to exist, that is, it must not completely dry up or
• “delayed accession” disappear

“In proportion to the area lost”
• Has no application if only 1 owner has lost
• If only 1 owner has lost, he gets the entire abandoned river bed
• “proportion” applies when there are 2 or more owners who have lost a portion
of their lots; in this case, the ENTIRE abandoned bed will go to them
proportionately (in proportion to the area each has lost)
- 20 -
• If the river goes back to its old course, thus flooding the original bed, the
owner of the land originally flooded would get back the ownership of the land
(bed) w/c he had lost
Note: the abandoned river bed is given to the owner(s) of the land(s) onto w/c the
river changed its course instead of the riparian owners

Reason for Inserting the Phrase `Ipso Facto’
• To make it clear that the rule applies by the mere fact of the occurrence of a
natural change in the course of the waters
• The prejudiced landowner automatically becomes the owner of the abandoned
river bed, once the conditions stated in the article are fulfilled or manifest, w/o
the necessity of any action or exercise of possession on their part
• Their mode of acquisition would be by virtue of the law
Proposal of Cong. Arturo Tolentino
• Repeal Art. 461 & restore Art. 370 of the Old Civil Code: “Beds of rivers
abandoned because of a change in the natural change in the course of the
water belong to the owners of the land bordering thereon throughout their
respective extents. If the abandoned bed divides estates belonging to different
owners, the new dividing line shall be equidistant from the former boundaries”
Answer of the Code Commission
• The new solution is by way of compensation for the loss of the land occupied
by the new bed. It is believed to be more equitable to compensate the actual
losers than to add land to those who have lost nothing.
Art. 463. Whenever the current of a river divides itself into branches, leaving a piece of
land or part thereof isolated, the owner of the land retains his ownership. He also
retains it if a portion of land is separated from the estate by the current.
Rule if River Divides Itself into Branches
A´s estate adjoins a river, but the river divides itself into branches, thus affecting A´s
property. A however remains the owner of the portion (this time – an island) which:
1. may be isolated from the rest (ISOLATION)
2. may be separated from the rest (SEARATION)
Note: The rule is applicable whether the river is navigable or not.
Art. 463 Art. 464 & 465
Formation of island by the Formation of islands by successive accumulation
branching off of a river of alluvial deposits (unidentifiable sediment)
No accession takes place, the Accession takes place
owner retaining his ownership of
the segregated portion

Observation of Justice JBL Ryes

• Art. 461 is “unworkable if the old bed left dry doesn't adjoin the lands of the
Art. 464. Islands which may be formed on the seas within the jurisdiction of the
new owner, unworkable because distance may make its economic
Philippines, on lakes, and on navigable or floatable rivers belong to the State.
development difficult.”
Art. 465. Islands which through successive accumulation of alluvial deposits are formed
• New solution offered: The old bed should be given to the riparian owners of
in non-navigable and non-floatable rivers, belong to the owners of the margins or
the land flooded, but never to exceed the value of either the new or the old
banks nearest to each of them, or to the owners of both margins if the island is in the
bed, whichever be smaller.
middle of the river, in which case it shall be divided longitudinally in halves. If a single
island thus formed be more distant from one margin than from the other, the owner of
Answer of Code Commission to the Proposed Amendment by Justice JBL Reyes
the nearer margin shall be the sole owner thereof.
• The amendment may work an injustice if the riparian owner doesn't have
enough money for indemnification, in w/c case no compensation may be had
for the loss, unlike in Art. 461 w/c makes the prejudiced party the owner of OWNERSHIP OF ISLANDS
the abandoned river bed. In most cases, the distance wouldn't be very long.
w/in the territorial waters or maritime zone or jurisdiction
If formed on the sea of the Philippines - STATE
Art. 462. Whenever a river, changing its course by natural causes, opens a new bed Outside our territorial jurisdiction – the 1st country to
through a private estate, this bed shall become of public dominion. effectively occupy the same
If formed on lakes, Patrimonial property of the STATE
Rule if New River Bed is on Private Estate navigable or floatable rivers
• Even if the new bed is on private property, the be becomes property of public If NEARER in margin to one bank, owner of nearer
domain, just as the old bed had been of public domain before abandonment If formed on non-navigable margin, is SOLE owner.
• The new river banks shall likewise be of public domain
or non-floatable rivers If EQUIDISTANT, the island shall be divided longitudinally
in halves, each bank getting half.
Rule if New River Bed is Itself Abandoned
• The owner of the land flooded by the new change of course would own the
newly abandoned bed

Navigable/Floatable Rivers: if useful for floatage & commerce, whether the tides
affect the water or not
Non-Navigable: the opposite of navigable rivers
Note: The State has a duty to declare w/c rivers are navigable & w/c are not
Rule to follow if a New Island is Formed Bet. the Older Island & the Bank: the
owner of the older island is considered a riparian owner, & if the new island is nearer in
margin to the older island, the owner of the older island should be considered also the
owner of the new island
SECTION 3. - Right of Accession with Respect to Movable Property
3 Types of Accession w/ Respect to Movable Property
1. adjunction
2. mixture (commixtion or confusion)
3. Specification
Art. 466. Whenever two movable things belonging to different owners are, without bad
faith, united in such a way that they form a single object, the owner of the principal
thing acquires the accessory, indemnifying the former owner thereof for its value.
Adjunction/Conjunction: the process by virtue of w/c 2 movable things belonging to
diff. owners are united in such a way that they form single object
Adjunction may be done:
1. in good faith
2. or in bad faith
Different Kinds of Adjunction
1. Inclusion
a. e.g. sapphire set on a ring
2. Soldering
a. e.g. joining legs made of lead to a body also made of lead
Ferrumination: objects are of the same metal
Plumabatura: objects are of different metals
Escritura: writing
Pintura: painting
Weaving
Art. 467. The principal thing, as between two things incorporated, is deemed to be that
to which the other has been united as an ornament, or for its use or perfection.
Art. 468. If it cannot be determined by the rule given in the preceding article which of
the two things incorporated is the principal one, the thing of the greater value shall be
so considered, and as between two things of equal value, that of the greater volume.
In painting and sculpture, writings, printed matter, engraving and lithographs, the
board, metal, stone, canvas, paper or parchment shall be deemed the accessory thing.
- 21 -
The Principal is (in the order of preference):
1. that to w/c the other has been united as an ornament, or for its use, or
perfection
2. that of greater value
3. that of greater volume
4. that w/c has greater merits (from the combined consideration of utility &
volume)
Rule to Follow if the Adjunction Concerns 3 or more Things: Determine w/c is
really the principal. All the rest should be considered accessories.
Art. 469. Whenever the things united can be separated without injury, their respective
owners may demand their separation.
Nevertheless, in case the thing united for the use, embellishment or perfection
of the other, is much more precious than the principal thing, the owner of the former
may demand its separation, even though the thing to which it has been incorporated
may suffer some injury.
When there can be separation w/o injury: there is no real accession
Rule if Accessory is More Precious than the Principal
• Separation, although w/ injury (but not destruction), is allowed, if the thing
united for the use, embellishment, or perfection of the other is much more
precious than the principal
Art. 470. Whenever the owner of the accessory thing has made the incorporation in
bad faith, he shall lose the thing incorporated and shall have the obligation to
indemnify the owner of the principal thing for the damages he may have suffered.
If the one who has acted in bad faith is the owner of the principal thing, the
owner of the accessory thing shall have a right to choose between the former paying
him its value or that the thing belonging to him be separated, even though for this
purpose it be necessary to destroy the principal thing; and in both cases, furthermore,
there shall be indemnity for damages.
If either one of the owners has made the incorporation with the knowledge
and without the objection of the other, their respective rights shall be determined as
though both acted in good faith.
Owner of ACCESSORY is in Bad Faith Owner of PRINCIPAL is in Bad Faith
- he loses all rights to the accessory thing - owner of accessory has the right to ask
- he will be liable for damages for payment of the accessory, plus
damages, or
- owner of accessory may choose to have
the accessory thing removed from the
principal thing, even if the principal
thing be destroyed, plus damages
Art. 471. Whenever the owner of the material employed without his consent has a right
to an indemnity, he may demand that this consist in the delivery of a thing equal in
kind and value, and in all other respects, to that employed, or else in the price thereof,
according to expert appraisal.
 - 22 -
Indemnity: How Paid If in the making of the thing bad faith intervened, the owner of the material
1. delivery of a thing equal in kind & value (quantity, quality) shall have the right to appropriate the work to himself without paying anything to the
2. payment of price as appraised by experts (sentimental value must be maker, or to demand of the latter that he indemnify him for the value of the material
considered) and the damages he may have suffered. However, the owner of the material cannot
appropriate the work in case the value of the latter, for artistic or scientific reasons, is
Note: the right to indemnity applies only if material was employed w/ the owner's considerably more than that of the material.
consent
RULES TO FOLLOW IN SPECIFICATION
Art. 472. If by the will of their owners two things of the same or different kinds are Worker/Principal in GOOD FAITH Worker/Principal in BAD FAITH
mixed, or if the mixture occurs by chance, and in the latter case the things are not Worker has the option: Owner of the materials has an option:
separable without injury, each owner shall acquire a right proportional to the part 1. he may appropriate the new thing 1. he can appropriate the work w/o
belonging to him, bearing in mind the value of the things mixed or confused. 2. but he must indemnify for the paying for the labor, OR
Art. 473. If by the will of only one owner, but in good faith, two things of the same or materials 2. he can demand indemnity for the
different kinds are mixed or confused, the rights of the owners shall be determined by materials plus damages
the provisions of the preceding article.
If the one who caused the mixture or confusion acted in bad faith, he shall Exception: if the materials is more Exception: The option of appropriation is
lose the thing belonging to him thus mixed or confused, besides being obliged to pay valuable than the new thing, the owner not available if the value of the resultant
indemnity for the damages caused to the owner of the other thing with which his own of the materials has the option: work is more valuable for artistic or
was mixed. 1. to get the new thing but he pays for scientific reasons
the work, OR
Mixture: the combination/union of materials where the respective identities of the 2. to demand indemnity for the material
component elements are lost plus damages

2 kinds of Mixture Specification: the giving of a new form to another's material thru the application of
1. Commixtion – if solids are mixed labor. The material undergoes a transformation or change of identity.
2. Confusion – if liquids are mixed
Examples:
RULES FOR MIXTURE 1. baking a cake w/ the flour of another
Mixture made by owner in GOOD Mixture made by owner in 2. using the paint of another to make a painting on your own canvas
FAITH, or by the will of BOTH BAD FAITH 3. using clothing materials of another to make a suit
owners, or by CHANCE, or by a
COMMON AGENT GR: it is the worker, not the owner of the material who is entitled to appropriate the
1. co-ownership results 1. he loses his material (in favour of finished product
2. each owner acquiring an interest/right another), and Exception: when the material is of more value than the transformed thing, the owner
proportional to the value of his 2. he is liable for damages of the material is given the preference/choice
material
ADJUNCTION MIXTURE SPECIFICATION
Rule if Parts Mixed are of Same Kind, Quantity & Quality: all that is needed Involves at least 2 Involves at least 2 things May involve only 1 thing (may
would be to divide the mixture into 2 equal parts things be more) but form is changed
Accessory follows Co-ownership results Accessory follows the principal
Rule in Case Mixture was Caused by the Negligence of One of the Parties: the the principal (with LABOR being considered
party negligent is liable for his culpa aquilana & should indemnify for damages. (Good the principal)
faith does not necessarily exclude negligence.) The things joined Things mixed or confused The new object retains or
retain their nature may either retain or lose preserves the nature of the
Art. 474. One who in good faith employs the material of another in whole or in part in their respective natures original object
order to make a thing of a different kind, shall appropriate the thing thus transformed
as his own, indemnifying the owner of the material for its value. Art. 475. In the preceding articles, sentimental value shall be duly appreciated.
If the material is more precious than the transformed thing or is of more
value, its owner may, at his option, appropriate the new thing to himself, after first Consideration of Sentimental Value
paying indemnity for the value of the work, or demand indemnity for the material. • A thing for some sentimental reason may be worth, to its owner, much more
than its actual value

CHAPTER 3: QUIETING OF TITLE
Art. 476. Whenever there is a cloud on title to real property or any interest therein, by
reason of any instrument, record, claim, encumbrance or proceeding which is
apparently valid or effective but is in truth and in fact invalid, ineffective, voidable, or
unenforceable, and may be prejudicial to said title, an action may be brought to
remove such cloud or to quiet the title.
An action may also be brought to prevent a cloud from being cast upon title to
real property or any interest therein.
Statement of the Code Commission Explaining the Reason For the Chapter on
Quieting of Title
1. Sec. 37 of the Code of Civil Procedure: Actions to remove a cloud from the
title to real estate shall be brought in the province where the land is situated
2. but no provision of the substantive law states under what conditions the action
may be brought
3. Equity comes to the aid of him who would suffer if the instrument were
enforced. He is in good conscience entitled to a removal of the cloud or doubt
upon his title. On the other hand, the respondent has no legal or moral ground
to hold the instrument against the petitioner's title.
Quieting of Title: a common-law remedy for the removal of any cloud upon or doubt
or uncertainty w/ respect to title to real property.
Purpose: to secure an adjudication that a claim of title to or an interest in property,
adverse to that of the complainant, is invalid, so that the complainant & those claiming
under him may be forever afterward free from any danger of hostile claim.
Court’s Task
• to determine the respective rights of the parties, so that the complaint & those
claiming under him may forever free from any danger of hostile claim
• not only to place things in their proper place, to make the one who has no
rights to said immovable respect & not disturb the other, but also for the
benefit of both, so that he who has the right would see every cloud of bout
over the property dissipated, & he could afterwards w/o fear introduce the
improvements he may desire, to use, & even to abuse the property as he
deems best
KINDS OF ACTION REFERRED TO
REMEDIAL Action to remove the cloud or to quiet title
PREVENTIVE Action to prevent a future cloud or doubt
The CLOUD on Title Exists Because:
1. of an instrument (deed or contract) or record or claim or encumbrances or
proceeding
2. w/c is apparently valid or effective
3. but is, in truth & in fact, invalid, ineffective, voidable, or unenforceable, or
extinguished, or terminated, or barred by extinctive prescription
4. AND prejudicial to the title
Note: When the instrument is not valid on its face, the remedy does not apply
- 23 -
Test: Would the owner of the property in an action at law brought by the adverse
party, & founded upon the instrument or claim, be required to offer evidence to defeat
a recovery?
• If proof would be essential – the cloud exists
• If proof is not needed – no cloud is cast
GR: Once a title is registered, the owner may rest secure, w/o the necessity of waiting
in the portals of the court, or sitting on the mirador su casa, to avoid the possibility of
losing his land.
Exception: Where a person obtains a certificate of title to a land belonging to another
& he has full knowledge of the rights of the true owner. He is guilty of fraud & he may
be compelled to transfer the land to the defrauded owner so long as the property has
not passed to the hands of an innocent purchase for value.
Rights of a Property Owner to Have Clouds Eliminate
1. that their respective rights be determined
2. not only to place things in their proper place, to make the one who has no
rights to said immovable respect & not disturb the other
3. but also for the benefit of both
4. so that he who has the right would see every cloud of doubt over the property
be dissipated
5. and he could afterwards w/o fear introduce the improvements he may desire,
to use, & even to abuse the property as he deems best
Reasons for Allowing the Action
1. the prevention of litigation (eventual litigation)
2. the protection of the true title & possession
3. the promotion of right & justice
Nature of the Action
• not “in rem”, but “in personam”
• the result is not binding upon the whole world
• it is enforceable only against the defeated party, or privies
• a suit to quiet title brought against one co-owner is NOT res judicata w/
respect to the other co-owners who were not made parties thereto
• technically, it is quasi in rem – an action in personam concerning real property
Note: An action to quiet title may apply to personal property w/c, though movable,
partake of the nature of real property (e.g. vessels)
When There Exists a Cloud over the Title:
1. an agent, w/ the written authority of his principal to sell the latter's property,
sold the same AFTER the death of the principal but antedated the contract of
sale
2. if the contract is forged
3. a contract by an incapacitated person
4. a mortgage valid on its fact & will cause prejudice although in reality invalid
Requisite Needed to Bring an Action to Prevent a Cloud
• there is a fixed determination on the part of the defendant to create a cloud, &
it is not sufficient that the danger is merely speculative

Does the Action to Quiet Title Prescribe?
1. If plaintiff is in possession
• The action DOES NOT PRESCRIBE
• Reason: while the owner continues to be liable to an action, proceeding,
or suit upon the adverse claim, he has a continuing right to be given aid
by the court to ascertain & determine the nature of such claim & its effect
on his title, or to assert any superior equity in his favour. He may wait
until his possession is disturbed or his title is attacked before taking steps
to vindicate his right.
2. If plaintiff is NOT in possession
• The action MAY PRESCRIBE
• Even if the action is brought w/in the period of limitations, it may be
barred by LACHES, where there is no excuse offered for the failure to
assert the title sooner
• If somebody else has possession, the period of prescription for the
recovery of the land is either 10 or 30 years, depending on ordinary or
extraordinary prescription
GR: An action for reconveyance of a parcel of land based on implied or constructive
trust prescribes in 10 years, the point of reference being the date of registration of the
deed or the date of the issuance of the certificate of title over the property.
Exception: If plaintiff is in possession, the action is imprescriptible.
Q: Just because probate proceedings are instituted, is it proper to archive an action to
quiet title (bet. parties each of whom claims to have purchased the same properties
from an heir) to certain properties involved in said probate proceedings?
A: NO. Probate proceedings don't delve into the ownership of the properties involved.
Probate courts have no jurisdiction to determine w/ finality, conflicts of ownership.
Such conflicts must be litigated in a separate action, except where a party merely prays
for the inclusion or exclusion from the inventory of any particular property, in w/c case
the probate court may pass upon provisionally the question of inclusion or exclusion,
but w/o prejudice to its final determination in an appropriate action.
Art. 477. The plaintiff must have legal or equitable title to, or interest in the real
property which is the subject matter of the action. He need not be in possession of said
property.
Necessity for the Title of the Plaintiff
• The plaintiff must have either the legal (registered) ownership or equitable
(beneficial) ownership. Otherwise, the action will not prosper
If Plaintiff is in Possession If Plaintiff is Out of Possession
Period does not prescribe Period prescribes
Only right to remove or prevent Aside from being given the right to remove or
cloud prevent cloud, he may also bring the ordinary
actions of ejectment, publiciana or reivindicatoria
w/in the proper prescriptive periods
Art. 478. There may also be an action to quiet title or remove a cloud therefrom when
the contract, instrument or other obligation has been extinguished or has terminated,
or has been barred by extinctive prescription.
- 24 -
2 Instances Where the Action May be Used
1. when the contract, etc. has ended
2. When the action is barred by extinctive prescription
Art. 479. The plaintiff must return to the defendant all benefits he may have received
from the latter, or reimburse him for expenses that may have redounded to the
plaintiff's benefit.
Note: Any expenses made by the defendant for the execution or registration of the
contract must also be reimbursed.
General Rule Based on Equity
• Whenever the plaintiff is shown to be legally or morally bund to restore or
reimburse, he must do so.
• He who comes to equity must do so equity.
• The precise purpose of the action is merely to quiet title & not to obtain some
pecuniary benefits.
Art. 480. The principles of the general law on the quieting of title are hereby adopted
insofar as they are not in conflict with this Code.
Principles of General Law: These are general principles developed on the subject in
Anglo-American Jurisprudence, where this remedy is well known.
Principles Regarding DEFENSES: the defendant can win if he can prove:
1. that the plaintiff doesn't have legal or equitable title
2. that the defendant has acquired the ownership by adverse possession
3. that the case has already been previously decided between parties on the
same issue – res judicata
4. that the defendant became the owner after the action has been filed, but
before he filed his answer (as by succession, donation, etc)
5. that the action has prescribed, the plaintiff being outside of possession
Principles Regarding the RELIEFS Given
1. unauthorized mortgages may be cancelled
2. in an ordinary case, the defendant may in his counter-claim ask for quieting of
title as against the plaintiff. (this can be done if the court has jurisdiction, in
order to settle all conflicting claims)
3. injunction may be availed of such as a prohibition to destroy certain properties
or to gather fruits from the land in question
Art. 481. The procedure for the quieting of title or the removal of a cloud therefrom
shall be governed by such rules of court as the Supreme Court shall promulgated.
Rules of Procedure as Enunciated by American Courts
1. the venue of an action is determined by the situation or location of the
premises, & not by the residence of the party
2. the process or notice should accurately describe the property & state in
general terms the nature & extent of the plaintiff's claim
3. the suit cannot be brought in the name of 1 party for the use & benefit of
another

When the Action to Quiet Title Will not Prosper
1. if its merely an action to settle a dispute concerning boundaries
2. if the case merely involves the proper interpretation & meaning of a contract
or document
3. if the plaintiff has no title, either legal or equitable
4. if the action has prescribed, & the plaintiff is not in possession of the property
5. if the contract, instrument, etc. is void on its face
6. if it is a mere claim or assertion, or the claim asserts that an instrument or
entry in behalf of the plaintiff is not really what it appears to be
CHAPTER 4: RUINOUS BUILDINGS AND TREES IN DANGER OF FALLING
Art. 482. If a building, wall, column, or any other construction is in danger of falling,
the owner shall be obliged to demolish it or to execute the necessary work in order to
prevent it from falling.
If the proprietor does not comply with this obligation, the administrative
authorities may order the demolition of the structure at the expense of the owner, or
take measures to insure public safety.
Q: On A´s estate is a wall facing the street. The wall is in danger of falling. May the
owner be compelled to demolish or repair it?
A: Yes, & if he doesn't do so, the administrative authorities may either:
1. order its demolition at A's expense
2. take measures to insure public safety
The complainant who brings the case must have:
1. his property adjacent to the dangerous construction, OR
2. to pass by necessity in the immediate vicinity
GR: if the construction falls, the owner would be liable for damages
Art. 483. Whenever a large tree threatens to fall in such a way as to cause damage to
the land or tenement of another or to travellers over a public or private road, the
owner of the tree shall be obliged to fell and remove it; and should he not do so, it
shall be done at his expense by order of the administrative authorities.
Rule w/ Respect to Large Trees About to Fall
• Failure on the owner's part to act accordingly will be met w/ expenses
shouldered by him.
Title III. - CO-OWNERSHIP
Art. 484. There is co-ownership whenever the ownership of an undivided thing or right
belongs to different persons.
In default of contracts, or of special provisions, co-ownership shall be
governed by the provisions of this Title.
- 25 -
Co-Ownership
• That state where an undivided thing or right belongs to 2 or more persons.
• It is the right of common dominion w/c 3 or more persons have in a
spiritual/ideal part of a thing w/c is not physically divided
• The right of common dominion w/c 2 or more persons have in spiritual part of
a thing, not materially or physically-divided. (Sanchez Roman)
• The manifestation of the private right of ownership, w/c instead of being
exercised by the owner in an exclusive manner over the things subject to it, is
exercised by 2 or more owners & the undivided thing or right to w/c it refers
to one & the same. (Manresa)
• A co-ownership is not a judicial person, nor is it granted any form of juridical
personality. Thus it cannot sue in court.
Note: there is no co-ownership when the different portions owned by different people
are already concretely determined & identifiable, even if not yet technically described.
Co-Owners
• Co-owners may litigate in their individual capacities.
• Possession of a co-owner is like that of a trustee & shall not be regarded as
adverse to the other co-owners but in fact as beneficial to all of them.
• A co-owner can only alienate his pro indivisio share in the co-owned property.
• A co-owner doesn't lose his part ownership of a co-owned property when his
share is mortgaged by another co-owner w/o the former's knowledge &
consent.
• A co-owner may validly lease his undivided interest to a 3rd party
independently of the other co-owners
• A co-owner of an undivided parcel of land is an owner of the whole, & over the
whole he exercises the right of dominion but he is at the same time the owner
of a portion w/c is truly ABSTRACT.
• A co-owner may file an action under Art. 487 not only against a 3rd person but
also against another co-owner who takes exclusive possession & asserts
exclusive ownership of the property
What Governs Co-Ownership?
1. contracts
2. special legal provisions
3. provisions of the Title on Co-Ownership
Note: In default of the 1st, apply the 2nd. In absence of the 2nd, apply the 3rd.
KINDS OF CO-OWNERSHIP
SUBJECT 1. Co-ownership of an undivided thing
MATTER 2. Co-ownership of an undivided right (e.g. lease right inherited from a
deceased father)
SOURCE 1. contraction co-ownership (e.g. an agreement not to divide for 10yrs)
2. Non-contractual co-ownership (if the source is not a contract)
RIGHTS 1. Tenancy in common (or ownership in common or just co-ownership)
OF THE 2. Joint tenancy (also called joint ownership)
CO-
OWNERS
 - 26 -
SOURCES OF CO-OWNERSHIP (How it Arises) TENANCY IN COMMON JOINT TENANCY
1. By Law • Party walls (CO-OWNERSHIP)
• Party ditches Involves a physical whole. But there Involves a physical whole. But there is NO
• The co-ownership of earnings by a man & woman whose is an ideal (abstract) division. Each ideal (abstract) division. Each & ALL of them
marriage is void, or who are living together w/o benefit of co-owner being the owner of his own own the whole thing.
marriage (but there must be no existing & valid conjugal ideal share.
partnership, as when either is already married to someone else) Each co-owner my dispose of his Each co-owner may not dispose of his own
Note: Property acquired by a man while living w/ a common-law ideal share or undivided share (w/o share w/o the consent of ALL the rest,
wife during the subsistence of his marriage is conjugal property, boundaries) WITHOUT the other's because he really has NO IDEAL share.
even when the property was titled in the name of the common- consent.
law wife. In such a case, a constructive trust is deemed to have If a co-owner dies, his share goes to If a joint-tenant dies, his share goes by
been created over the property w/c lawfully pertains to the his own heirs. accretion to the other joint-tenants by virtue
conjugal partnership of the subsisting marriage. of their survivorship or jus accrecendi.
Note: If the actual contribution of a party is not proved, there If a co-owner is a minor, this doesn't If a joint-tenant is under a legal disability
will be no co-ownership & no presumption of equal shares benefit the other for the purpose of (e.g. minority), this benefits the other against
2. By Contract • 2 cousins buy a parcel of land, share in the price, & agree not to prescription, & prescription therefore whom prescription will not run.
divide for 10 years runs against them.
3. By Chance • Commixtion
• Confusion CO-OWNERSHIP ORIGINAL PARTNERSHIP
• Hidden treasure No legal personality Has legal or juridical personality
4. By Occupation • When the wild beast is caught by several persons Created by contract or by other Created by contract only (express or implied)
or Occupancy Note: This ruling seems erroneous because while it is occupation,
things
still the co-ownership must have been presumed because of an Purpose: collective enjoyment Purpose: profit
implied agreement or contract between the 2 hunters. Agreement for it to exist for 10 There is no term limit set by the law
5. By Succession • Intestate heirs before partition, the successional estate being a years – valid (if for more than 10
or Will co-ownership prior to partition years, the excess is void)
Note: In the exercise of the right of legal redemption, the rule No mutual representation There is mutual representation
concerning co-heirs must apply, & not that concerning co-owners. Not dissolved by death or Is dissolved by the death or incapacity of
If after partition, some of the co-heirs decide to continue to be co- incapacity of co-owner partner
owners of a certain portion of the estate, the rule for legal
Can dispose of his share w/o Cannot substitute another as partner in his
redemption will now be the rule concerning co-owners. consent of others place w/o consent of the other
Note: If a father & daughter declare in a deed of partition that
Profits must always depend on Profits must be stipulated upon
they're co-owners of land w/c is really paraphernal land of his 2nd
proportionate shares
wife, co-ownership isn't created for the lot remains paraphernal.
Note: Res judicata generally applies in cadastral proceedings,
including adjudication of co-ownerships therein. CO-OWNERSHIP CONJUGAL PARTNERSHIP
May arise by an ordinary contract Arises only because of the marriage contract
Sex of the co-owners is immaterial One must be male, other must be female
Characteristics of Co-Ownership
Co-owners may be 2 or more Conjugal owners are always 2
1. There must be more than 1 subject or owner.
2. There is 1 physical whole divided into ideal (undivided) shares. Profits are proportional to Profits are generally 50-50 unless a contrary
3. Each ideal share is definite in amount, but is not physically segregated from respective interests stipulation is in a marriage settlement
the rest. Death of 1 does not dissolve the Death of either husband/wife dissolves the
4. Regarding the physical whole, each co-owner must respect each other in the co-ownership conjugal partnership
common use, enjoyment or preservation of the physical whole. (Thus, a co- Generally all co-owners administer Generally, the husband is the administrator
owner cannot sell a definite – with boundaries – part of the property.) Co-ownership is discouraged by law Encouraged by law to provide for better family
5. Regarding the ideal share, each co-owner holds almost absolute control over solidarity
the same. (Thus, he is a full owner of his part, & of the fruits & benefits
thereof; and he may alienate, assign, or mortgage it, but he cannot substitute Art. 485. The share of the co-owners, in the benefits as well as in the charges, shall be
another person in its enjoyment, when personal rights are involved.) proportional to their respective interests. Any stipulation in a contract to the contrary
6. It is not a juridical person. (It has not juridical personality). shall be void.
7. A co-owner is in a sense a trustee for the other co-owners. (GR: He may not
acquire ownership of the property held in common through prescription.)

The portions belonging to the co-owners in the co-ownership shall be
presumed equal, unless the contrary is proved.
Shares in Benefits & Charges
1. The share in the benefits & charges is proportional to the interest of each.
(e.g. if 1 co-owner owns 2/3, he shares 2/3 of the taxes)
2. Contrary stipulation is VOID. To do so would be to run against the nature of
co-ownership.
3. Each co-owner shares proportionately in the accretion or alluvium of the
property. (Because an increase in area benefits all)
Taxes
1. If a co-owner has paid the taxes: he can compel contribution from his co-
owners
2. If a co-owner has not yet paid taxes: he cannot compel them to pay the
overdue and unpaid taxes to him himself, for after all, the taxes are due, not
to him, but to the government.
Art. 486. Each co-owner may use the thing owned in common, provided he does so in
accordance with the purpose for which it is intended and in such a way as not to injure
the interest of the co-ownership or prevent the other co-owners from using it according
to their rights. The purpose of the co-ownership may be changed by agreement,
express or implied.
GR: each co-owner has the right to use the property for the purpose intended (said
purpose being alterable by express/implied agreement), BUT:
1. the interest of the co-ownership must not be injured/prejudiced
2. the other co-owners must not be prevented from using it
Apartment House
• Accessorias or apartments are built either for residential purposes or for stores
Art. 487. Any one of the co-owners may bring an action in ejectment.
Right of Co-owners to Bring an Action in Ejectment
• Any of the co-owners are authorized to bring an action for ejectment & the
suit is deemed to be instituted for the benefit of all, w/o the owners actually
giving consent to the suit
• An attorney-in-fact of a co-owner doesn't need authority from all the co-
owners; he needs authority only from the co-owner instituting action
• Presumption: the case instituted by 1 was really in behalf of ALL
Note: If the co-owner expressly states that he is bringing the case only for himself, the
action should not be allowed to prosper.
Actions Covered by “Ejectment”
1. forcible entry
2. unlawful detainer
3. accion publiciana
4. accion reivindicatoria
5. quieting of title
6. replevin
- 27 -
GR: A decision in a suit to quiet title brought against 1 co-owner by a 3rd party is NOT
RES JUDICATA w/ respect to the other co-owners, because co-owners as such are not
privies inter se in relation to the property owned in common.
Exception: A statement in said suit stating that the document relied upon by the co-
owners' predecessor-in-interest did NOT give title to said predecessor, is BINDING on
said co-owners, for regarding this aspect, they may be considered as privies or
successors-in-interest. If their predecessor-father was NOT the owner of the land, they,
the children cannot be considered as co-heir or co-owners.
Note: Any co-owner may file an action for ejectment not only against a 3rd person but
also against another co-owner who takes exclusive possession & asserts exclusive
ownership of the property.
Art. 488. Each co-owner shall have a right to compel the other co-owners to contribute
to the expenses of preservation of the thing or right owned in common and to the
taxes. Any one of the latter may exempt himself from this obligation by renouncing so
much of his undivided interest as may be equivalent to his share of the expenses and
taxes. No such waiver shall be made if it is prejudicial to the co-ownership.
Expenses for Preservation
• a co-owners has the right to compel the others to share in the expenses for
preservation, even if incurred w/o prior notification to them (since expenses
are necessary) BUT he must notify if PRACTICABLE
How a Co-Owner May Exempt Himself
• By RENOUNCING (abandoning for the benefit of the others) so much of his
undivided share as may be equivalent to his share of the expenses & taxes
• The one renouncing doesn't necessarily renounce his entire interest in the co-
ownership
Note: The renouncing cannot be done if the co-ownership will be prejudiced.
What the Renouncing Requires
• If renouncing is in favour of the creditor: said creditor must give his consent
(for this would be a case of adjudicacin en pago or datio in solutum, where a
debtor gives something else in payment of his debt)
• If renouncing is in favour of the other co-owners: a novation would result
necessitating the consent of said other co-owners & of the creditor
Note: the creditor's consent would be needed only if the expenses have already been
incurred, otherwise there would as yet be no creditors.
What Reimbursement Covers
• NECESSARY expenses (e.g. those for preservation of a house in a ruinous
condition)
• Not for useful expenses, even if the value of the property is increased, the
purpose of co-ownership not being for profit
Note: Reimbursement can be had from the estate of a deceased co-owner, provided no
renunciation has been made.
When Renunciation Cannot be Implied
• Renunciation can't be implied by mere refusal to pay the proportionate share.

• If there is refusal to pay, but no renunciation, the creditors can still collect
from the delinquent co-owner. Here, the other co-owners don't have to
intervene, for they are not the ones prejudiced.
Art. 489. Repairs for preservation may be made at the will of one of the co-owners, but
he must, if practicable, first notify his co-owners of the necessity for such repairs.
Expenses to improve or embellish the thing shall be decided upon by a majority as
determined in Article 492.
Number of Co-owners Who Must Consent
1. repairs, ejectment action – ONE
2. alterations or acts of ownership – ALL
3. all others, like useful improvements, luxurious embellishments, administration
& better enjoyment – FINANCIAL MAJORITY (not numerical)
Rule as to Necessity Repairs
• a co-owner can go ahead w/ necessary repairs even against the opposition of
all the rest.
• The negligence of others shouldn't prejudice him.
• If he has money, he may advance the funds.
• If he has NO money in the meantime, he can contract w/ the repairman, & all
the co-owners will be liable proportionately to the creditors.
• They may renounce their shares in the co-ownership (equivalent to their share
in the expenses) in favour of the CREDITORS (provided the latter agree)
• They may make the renouncing in favour of the CONSCIENTIOUS CO-OWNER
(provided that said co-owner agrees to assume that obligation, & provided the
creditors agree), otherwise no renouncing can be done & they would still be
indebted.
Note: If because of unjustified opposition of the majority of the co-owners, necessary
repairs urged by 1 were not undertaken, & damage resulted, those who made the
unjustified opposition will be responsible for said damages.
Rule if No Notification Was Made But it was Practicable to do so
• The other co-owners may state that had they been notified, they could have
helped look fro cheaper labor & materials, & that therefore they should pay
less than what is being charged them.
• In such a case, the co-owner who neglected to make the notification must
take care of the difference.
Practicable: Something that can be done.
Practical: Useful
Art. 490. Whenever the different stories of a house belong to different owners, if the
titles of ownership do not specify the terms under which they should contribute to the
necessary expenses and there exists no agreement on the subject, the following rules
shall be observed:
(1) The main and party walls, the roof and the other things used in common, shall be
preserved at the expense of all the owners in proportion to the value of the story
belonging to each;
(2) Each owner shall bear the cost of maintaining the floor of his story; the floor of the
entrance, front door, common yard and sanitary works common to all, shall be
maintained at the expense of all the owners pro rata;
- 28 -
(3) The stairs from the entrance to the first story shall be maintained at the expense of
all the owners pro rata, with the exception of the owner of the ground floor; the stairs
from the first to the second story shall be preserved at the expense of all, except the
owner of the ground floor and the owner of the first story; and so on successively.
Perpendicular Co-Ownership
• The different stories belong to different persons
• There is still co-ownership for there is some unity in the use or ornamentation
of the property, particularly in the main & common walls, roof, stairs, etc.
Horizontal Co-Ownership
• If the various units are in 1 plane – as when one-story units all set on the
ground
Note: a combination of both perpendicular & horizontal co-ownership can result in a
situation very similar to a condominium w/c may be in the form of a building consisting
of several stories, each story being by itself divided into different units, owned by
different persons. Each unit cannot be considered owned in common.
The Rules Themselves
1. proportionate contribution is required for the preservation of:
a. the main walls
b. the party walls
c. the roof (this is really used by ALL)
d. the other things used in common
2. each floor owner must bear the expenses of his floor
3. stairs are to be maintained from story to story, by the users
Note: The ground floor is distinct from the 1st story
Condominium Law
• the buyer of a unit in a condominium acquires ownership over the unit only
after he has paid in full its purchase price
• the ownership of a condominium unit is the “separate interest” of the owner
w/c makes him automatically a shareholder in the condominium
• all incorporators of a condominium must be an owner of a condominium unit
• common areas & facilities: portions of a condominium property not included in
the units
• unit: a part of the condominium property w/c is to be subject to private
ownership
Art. 491. None of the co-owners shall, without the consent of the others, make
alterations in the thing owned in common, even though benefits for all would result
therefrom. However, if the withholding of the consent by one or more of the co-owners
is clearly prejudicial to the common interest, the courts may afford adequate relief.
An ALTERATION is a change
1. w/c is more or less permanent
2. w/c changes the use of the thing
3. w/c prejudices the condition of the thing or its enjoyment by the others
 - 29 -

Examples of Alterations Acts of Administration or Management

1. sale, donation or mortgage, etc. of the whole property 1. those that do not involve an alteration
2. sale, donation, or mortgage, etc. of a part of the property but w/ definite 2. those that may be renewed from time to time
boundaries 3. those that have transitory effects, that is, do not bind the co-ownership for a
3. a voluntary easement long time in the future
4. lease of real property if 4. those that do not give rise to a real right over the thing owned in common
a. the lease is recorded/registered, or 5. those, w/c even if called an alteration, do not affect the substance of nature of
b. the lease is for more than 1 year the thing
5. the construction of a house on a lot owned in common 6. those for the common benefit of all the co-owners & not for only 1 or some of
6. any other act of strict dominion or ownership them
7. impliedly, contracts of long duration Note: All the requisites mentioned must concur.

Unanimous Consent Examples of Acts of Administration

1. express
a. express consent of the others is needed to recover a share of the
expenses
b. this express consent must be proved by the 1 who made the alteration if
he desires proportionate reimbursement
2. implied
a. only for the purpose of making the alteration legal
b. not enough to make the other co-owners liable for the expenses for the
construction of the house
Replacement: not considered an alteration
When an Alteration is Illegal: An alteration is illegal when made w/o the express or
implied consent of the other co-owners
Effects of an Illegal Alteration
1. the co-owner responsible my lose what he has spent
2. demolition can be compelled
3. he would be liable for losses & damages
4. but whatever benefits the co-ownership derives will belong to it
5. in case a house is constructed on common lot, all the co-owners will be
entitled to a proportionate share of the rent
Art. 492. For the administration and better enjoyment of the thing owned in common,
the resolutions of the majority of the co-owners shall be binding.
There shall be no majority unless the resolution is approved by the co-owners
who represent the controlling interest in the object of the co-ownership.
Should there be no majority, or should the resolution of the majority be
seriously prejudicial to those interested in the property owned in common, the court, at
the instance of an interested party, shall order such measures as it may deem proper,
including the appointment of an administrator.
Whenever a part of the thing belongs exclusively to one of the co-owners, and
the remainder is owned in common, the preceding provision shall apply only to the part
owned in common.
1. lease of 1 year or less (of real property) provided it is not registered
2. acts of management; examples:
a. when by the resolution of the financial majority, 1 of them is appointed
manager or administrator, & is entrusted w/ the custody of jewels owned
in common)
b. the right of co-heirs to manage inherited property
c. the right to appoint even a stranger as administrator or agent of the co-
ownership, w/ the rights & obligations of an agent)
Limitations on the Right of Financial Majority
1. although they can approve resolutions for administration & better enjoyment,
still before a decision is made, there should 1st be a notice to the minority so
that they can be heard
2. the majority would be justified in proceeding only when the urgency of the
case & the difficulty of meeting w/ them render impracticable the giving of
such notice
The MINORITY may APPEAL to the court against the decision of the majority
when:
1. there is no real majority
2. the resolution is seriously prejudicial to the rights of an individual co-owner
3. when the majority refuses to correct abuse of administration or
maladministration
4. when the minority is made the victim of fraud
5. when an alteration (instead of a mere act of administration) is agreed upon
Examples of Acts Seriously Prejudicial
1. when loans are made w/o sufficient security
2. when an encumbrance or disposition is made since this would be an alteration
3. when an abusive or inefficient administrator is not replaced
Art. 493. Each co-owner shall have the full ownership of his part and of the fruits and
benefits pertaining thereto, and he may therefore alienate, assign or mortgage it, and
even substitute another person in its enjoyment, except when personal rights are
involved. But the effect of the alienation or the mortgage, with respect to the co-
owners, shall be limited to the portion which may be allotted to him in the division
upon the termination of the co-ownership.

Rules Regarding the Ideal Share
1. each co-owner has FULL ownership of his part & of his share of the fruits &
benefits
2. hence, each co-owner may alienate, assign or mortgage his (ideal) share (not
1 w/ boundaries)
a. this is w/o prejudice to the exercise by the others of their right of legal
redemption
b. redemption of share of co-owners cannot be effected if there has already
been a partition of the property formerly owned in common.
3. he may substitute another person in its enjoyment, except when personal
rights are involved
4. he may exempt himself from necessary expenses & taxes by renouncing part
of his interest in the co-ownership
Unauthorized Sale of the Entire Property: the sale is valid only insofar as his share
is concerned, unless the other co-owners consented to the sale.
Art. 494. No co-owner shall be obliged to remain in the co-ownership. Each co-owner
may demand at any time the partition of the thing owned in common, insofar as his
share is concerned.
Nevertheless, an agreement to keep the thing undivided for a certain period of time,
not exceeding 10 years, shall be valid. This term may be extended by a new
agreement.
A donor or testator may prohibit partition for a period which shall not exceed 20 years.
Neither shall there be any partition when it is prohibited by law.
No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-
heirs so long as he expressly or impliedly recognizes the co-ownership.
Reason for Allowing Partition, as a Rule, at Any Time
• To remain in a co-ownership would be to subject a person to the desire of the
rest
• Conflicts in management being bound to arise, the law as much as possible
discourages co-ownership
• No co-owner is obliged to remain in the co-ownership
• The right to demand partition never prescribes
Object of Partition
• Both real & personal properties may be the object of partition
• Partition has for its purpose the separation, division, or assignment of things
held in common, among the people to whom they may belong.
When Co-Owner May NOT Successfully Demand a Partition
1. if by agreement (for a period not exceeding 10 years), partition is prohibited
2. when partition is prohibited by a donor or testator (for a period not exceeding
20 years) from whom the property came
3. when partition is prohibited by law (e.g. conjugal partnership property, except
in certain instances)
4. when a physical partition would render the property unserviceable, but in this
case, the property may be allotted to 1 of the co-owners, who shall indemnify
the others, or it will be sold, & the proceeds distributed
5. when the legal nature of the common property doesn't allow partition (e.g.
party walls)
- 30 -
Prohibition to Partition Because of an Agreement
1. the period must not extend to more than 10 years
2. if it exceeds 10 years, the stipulation is valid only insofar as the 1st 10 years
are concerned
3. there can be an extension but only after the original period has expired
4. after the 1st extension, there can be another, & so on indefinitely, as long as
for each extension, the period of 10 years is not exceeded
5. a perpetual prohibition should be considered void as against public policy, but
in such a case, it is believed that it should be considered valid, for the 1st 10
years
6. notwithstanding any agreement to partition for 10 years, the parties may
mutually rescind the agreement, provided everybody consents
Rules in the Case of Succession or Inheritance
• a testator may provide in his will that the property he is disposing of will not
be partitioned for 10 years. The legitime may even be subject to this condition
• although a testator may provide for an indivision of 20 years, the heirs may
nevertheless partition the property should any of the grounds for the
dissolution of partnership exist
• Before the partition of a land/thing held in common, no individual co-owner
can claim title to any definite portion thereof. All the co-owner has is an ideal
or abstract quota or proportionate share in the entire land/thing.
Prescription in Favor of a Co-Owner Against the Other Co-Owners
GR: 1 co-owner cannot acquire the whole property as against the other co-owners.
This is why the others can demand partition at any time. But this is only true, so long
as the co-owner concerned expressly/impliedly recognizes the co-ownership.
Exception: A co-owner can become the exclusive owner of the others' shares by
prescription, if the following conditions are present:
1. he must make known to the other co-owners that he is definitely repudiating
the co-ownership & that he is claiming complete ownership over the entire
property
2. the evidence of repudiation & knowledge on the part of the others must be
clear & convincing
3. the other requirements of prescription – continuous, open, peaceful, public,
adverse possession for the period of time required under the law must be
present
4. the period of prescription shall start to run only from such repudiation of co-
ownership
Note: A constructive/implied trust can prescribe, but an express trust cannot prescribe.
GR: Prescription does not adversely affect a co-owner or co-heir.
Exception: Under certain conditions, the co-ownership or the co-heirship may be
repudiated; from this moment of repudiation, prescription begins to run.
Art. 495. Notwithstanding the provisions of the preceding article, the co-owners cannot
demand a physical division of the thing owned in common, when to do so would render
it unserviceable for the use for which it is intended. But the co-ownership may be
terminated in accordance with Article 498.
 - 31 -
Partition of an Essentially Indivisible Object What a Person Desiring Judicial Partition of Real Estate Must Do:
• E.g. the partition of an automobile owned in common 1. set forth in his complaint the nature & extent of his title
• If to physically partition is not practicable, the co-ownership may end under 2. set forth an adequate description of the real estate
Art. 498 3. he must join as defendants all other persons interested in the property

Art. 496. Partition may be made by agreement between the parties or by judicial • unless all other co-owners & interested persons are made defendants, the
proceedings. Partition shall be governed by the Rules of Court insofar as they are action will not prosper
consistent with this Code. • if a co-owner is dead, his administrator or his heirs may bring the action
• insufficiency of description in the complaint may be cured even during the
trial, not afterwards
CLASSIFICATION OF THE VARIOUS KINDS OF PARTITION • an action for partition cannot be considered as 1 for the partition of the
Extrajudicial (conventional) property owned in common even though it is so entitled & the prayer of the
CAUSE complaint is to this effect, if any party to the suit denies the pro-indiviso
Judicial (when court approval is sought or when
(undivided) character of the estate whose partition is sought & claims
partition is made by the court)
Provisional or temporary exclusive title thereto or to any part thereof. In such a case, the action
PERMANENCE
Permanent becomes one for recovery of property insofar as the property claimed
exclusively by any of the parties is concerned.
SUBJECT Partition of real property
• It is imperative for the court to determine ownership before a proper
MATTER Partition of personal property
adjudication of the partitioned property can be made.
Partition in a judicial decree
FORMS & Partition duly registered in the Registry of Property What Court Must do if it Finds that the Plaintiff has the Right to Demand
SOLEMNITIES Partition in a public instrument Partition
Partition in a private instrument • It shall order the partition of the real estate among all the parties in interest
Oral partition • The parties may, if they are able to agree, make the partition among
themselves, by proper instruments of conveyance, & the court shall confirm
The Law that Governs Partition the partition so agreed upon by all the parties, & such partition, together w/
1. Civil Code the order of the court confirming the same, shall be recorded in the registry of
2. Rules of Court (Rule 69 – Partition) deeds of the place in w/c the property is situated.
• A final order decreeing partition & accounting may be appealed by any party
Rules of Court, Rule 74, Sec. 1 — Conditions for a Partition to be Valid aggrieved thereby.
1. the decedent left no will
2. the decedent left no debts, or if there were debts left – all had been paid Public Document
3. the heirs & liquidators are all of age, or if they are minors, the latter are • While a partition thru a public document would be desirable, still the law does
represented by their judicial guardian or legal representatives NOT require expressly the constitution of said public document.
4. the partition was made by means of a public instrument or affidavits duly filed
w/ the Register of Deeds Private Document
• Oral partition or partition by virtue of a private instrument is allowed,
Rules of the National Planning Commission (NPC) considering there is not change of ownership, but a mere designation &
• the co-owners have the right to voluntarily terminate their existing co- segregation of the part that rightfully belongs to each co-owner.
ownership over the property thru an agreement subdividing the land among • While a private document of sale of land is valid & binding bet. the parties, it
themselves is not sufficient by itself to convey title or any real right to the land
• this right exists even if their subdivision doesn't conform to the rules of the • Acts & contracts w/c have for their object the creation, transmission,
NPC as to the area of each lot, frontage & width of alleys modification or extinguishment of real right over immovable property must
appear in a public instrument
Reasons Note: what the buyer must do is compel the seller to execute the needed public
1. the rules of the NPC are intended to regulate the subdivision of land for sale & instrument. This is because the sale is valid & enforceable.
for building development (not for a voluntary partitioning, or introduction of
improvements by co-owners) What Court Must do if the Parties Fail to Agree on the Partition
2. even if the rules of the NPC would ordinarily be applicable, these were • The court shall appoint not more than 3 competent & disinterested persons as
promulgated under EO98 of 1946 & should not prevail over the Civil Code w/c commissioners to make the partition, commanding them to set off to the
took effect in 1950 plaintiff & to each party in interest such part & proportion of the property as
the court shall direct.

• A decision directing partition is NOT final but interlocutory because it leaves
something more to be done in the trial for the complete disposition of the case
– the appointment of commissioners, the proceedings to be had before them,
the submission of their report w/c must be set for hearing
• The selection of commissioners depends upon the court's discretion, & will not
be altered by the appellate court, unless abuse of discretion is proved
Factors to be Considered in Making the Partition
• The commissioners shall view & examine the real estate
• They shall heart the parties as to their preference in the portion of the
property to be set apart to them & the comparative value
• Set apart the portion to the parties in lots or parcels as will be most
advantageous & equitable
• Have due regard to the improvements, situation, & quality of the different
parts of the land
Rule if Physical Partition is Prejudicial
• The land will be given to 1 co-owner who should reimburse the rest, unless 1
asks that a public sale be made
• The request for a sale is allowed to foresetall collusion bet. the assignee & the
commissioners regarding the land's value
Effectivity of the Partition Made by the Commissioners
• It will not be effective until approved by the court
• The court is allowed to approve, amend, or disapprove the report
• New commissioners may even be appointed
Rule as to Who Pays the Costs
• The parties shall pay the costs, including the compensation of the
commissioners
Statement of the Proper Boundaries
• If actual partition is made, the judgment shall state the proper boundaries
Necessity of Delivery
• Delivery is a necessary & indispensable incident to carry into effect the
purpose of the partition
• Each co-owner may be placed in possession of the lot adjudicated to him even
if the court's decision on the partition be silent in this respect
Conversion of Partition Proceeding to One for the Settlement of an Estate
• This cannot be done w/o compliance w/ the procedure outlined in the Rules of
Court (Rules 78-89), esp. the provisions on publication & notice to creditors
Rule in Partition Sales
• In partition sales conducted by the authority of the court, if the sale is made
by the sheriff for cash, & the bidder to whom the property was adjudicated
fails to make immediate payment, the sheriff may sell the property anew on
the same day w/o readvertising, even after the hours of sale have elapsed.
• Partition sales become valid & binding only upon confirmation by the court, so
that before such confirmation, the bidder acquires no contractual right.
- 32 -
• If the property is resold before the confirmation of the 1st sale, & the resale is
duly confirmed by the court, the originally purchaser is released from further
liability upon his purchase, & cannot be held for the deficiency upon resale.
Effect of an Extrajudicial Partition that is Later On Approved by a Court of
Competent Jurisdiction
• The partition renders almost conclusive questions of possession & ownership
over the property – such that future judicial determination will generally be
precluded
Novation of Partition
• A partition may be novated as long as ALL the interested parties consent
thereto.
Prescriptive Period if Partition is Void
• The action to declare the nullity of a VOID extrajudicial partition does NOT
prescribe
Art. 497. The creditors or assignees of the co-owners may take part in the division of
the thing owned in common and object to its being effected without their concurrence.
But they cannot impugn any partition already executed, unless there has been fraud, or
in case it was made notwithstanding a formal opposition presented to prevent it,
without prejudice to the right of the debtor or assignor to maintain its validity.
Scope of Creditors
• All creditors whether preferred or ordinary
• They must have become creditors during the existence of the co-ownership, &
NOT before or after
Participation of Assignees
Q: A, B & C are co-owners. A sold his share to X. who is entitled to participate in the
partition, A or X?
A: It depends.
• If a sold his WHOLE share, & has DELIVERED the same, then it is NOT A who
should participate but X. In this case, X is participating not as an assignee, but
in his own right as co-owner.
• If A sold only a PART of his share, or even if he sold his entire share but has
NOT YET DELIVERED, the same to X, then both A & X are allowed to
participate in the partition together w/ B & C. A as co-owner, & X as assignee.
Notice to Creditors & Assignees
• Since the law grants them the right to participate in the partition it is
understood that notice must be given them
• It will be their fault if they do not appear after such notification & ordinarily,
they will not be allowed to impugn the partition, unless FRAUD against them
has been committed
Art. 498. Whenever the thing is essentially indivisible and the co-owners cannot agree
that it be allotted to one of them who shall indemnify the others, it shall be sold and its
proceeds distributed.

Example of an object essentially indivisible: an automobile
Legal/Juridical Dissolution: the termination of co-ownership here is made not
physically but by law
Procedure for the Legal Partition
1. give the whole to 1 co-owner who will now be required to indemnify the rest
2. if this is not agreed upon, there must be a sale (public or private)
Note: there is no right of legal redemption here for the co-ownership has ceased
Note: Applicable also to Objects Essentially Divisible
Art. 499. The partition of a thing owned in common shall not prejudice third persons,
who shall retain the rights of mortgage, servitude or any other real rights belonging to
them before the division was made. Personal rights pertaining to third persons against
the co-ownership shall also remain in force, notwithstanding the partition.
Meaning of “3rd Persons”
• All those who did not in any way participate or intervene in the partition
Note: When the court is asked to help in the partition, the interests of all persons must
be considered so that reason & justice would prevail.
Art. 500. Upon partition, there shall be a mutual accounting for benefits received and
reimbursements for expenses made. Likewise, each co-owner shall pay for damages
caused by reason of his negligence or fraud.
Effectsof Partition
1. mutual accounting for benefits received
2. mutual reimbursement
3. indemnity for damages in case of negligence or fraud
4. reciprocal warranty for
a. defects of title (eviction)
b. quality (or hidden defects)
5. each former co-owner is deemed to have had exclusive possession of the part
allotted to him for the entire period during w/c the co-possession lasted
6. partition confers upon each, the exclusive title over his respective share
Art. 501. Every co-owner shall, after partition, be liable for defects of title and quality
of the portion assigned to each of the other co-owners.
How Co-Ownership Extinguished
1. judicial partition
2. extrajudicial partition
3. when by prescription, 1 co-owner has acquired the whole property by adverse
possession as against all the others, & repudiating unequivocally the co-
ownership of the other
4. when a stranger acquires by prescription the thing owned in common
5. merger in 1 co-owner
6. loss or destruction
7. expropriation (indemnity will be distributed accordingly
- 33 -
Title V. - POSSESSION
CHAPTER 1: POSSESSION AND THE KINDS THEREOF
Art. 523. Possession is the holding of a thing or the enjoyment of a right.
Possession
• Etymology – derived from “pos sedere” (“to be settled”) or “posse”
• Legal - the holding or control of a thing; or the exercise of a right. (This is only
quasi-possession since a right is incorporeal.)
Q: Is possession a fact or a right?
A: It is really a fact since it exists; but from the moment it exists, certain
consequences follow, thus making possession also a right.
Viewpoints of Possession
1. Right TO Possession (jus possidendi) – a right or incident of ownership
a. e.g. I own a house; therefore I am entitled to possess it
2. Right OF Possession (jus possessionis) – an independent right of itself,
independent of ownership
a. e.g. I am renting a house from X. Although I am not the owner, still by
virtue of a lease agreement, I am entitled to posses the house for the
period of the lease.
Degrees of Possession
1. grammatical degree: mere holding or having, w/o any right whatsoever
e.g. possession by a thief
2. juridical possession: possession w/ a juridical title, but not that of an owner
e.g. that of a lessee, pledge, depositary
3. real possessory right: possession w/ a just title, but not from the true owner
e.g. A in good faith buys an automobile from B who delivers the same to A,
and who merely pretended to be the owner
4. possession w/ a title of dominium, that is, w/ a just title from the owner
(this is really ownership or possession that spring from ownership)
Requisites or Elements of Possession
1. a holding or control
2. a deliberate intention to possess
3. the possession must be virtue of one's own right
Note: an agent who holds is not truly in possession; it is the principal who possesses
thru the agent.
Holding or Detention
• may be actual or constructive occupation
• if a person assumes control over a big tract of land although he actually
possesses only ¼ of it, he is said to be in constructive possession of the rest
• possession in the eyes of the law does not mean that a man has to have his
feet on every square meter of ground before it can be said that he is in
possession
• it is essential in constructive possession that the property be not in the
adverse possession of another

Classes of Possession
1. in one's own name or in that of another
2. in the concept of owner (en concepto de dueno) & in the concept of holder
3. in good faith (bona fide) or in bad faith (mala fide)
Ownership is Different from Possession
• A person may be declared the owner, but he may not be entitled to possession
• The possession (in the concept of a holder) may be in the hands of another
(e.g. lessee or a tenant)
• A person may have introduced improvements thereon of w/c he may not be
deprived w/o due hearing
• He may have other valid defenses to resist surrender of possession
• Hence, a judgment for ownership does NOT necessarily include possession as
a necessary incident. This is moreover true only if there is the possibility that
the actual possessor has some rights w/c must be respected & defined.
• Where the actual possessor has no valid right over the property enforceable
even against the owner thereof, the surrender of the possession to the
adjudged owner should be considered included in the judgment.
Note: Possession is not a definite proof of ownership, nor is non-possession
inconsistent therewith.
Physical Possession
• When the primary issue to be resolved is physical possession, the issue should
be threshed out in the ejectment suit, and not in any other case such as an
action for declaratory relief to avoid multiplicity of suits.
Art. 524. Possession may be exercised in one's own name or in that of another.
Name Under W/C Possession May be Exercised
1. in one's own name
2. name of another
Q: Who is in actual possession of a rented parcel of land
A: The lessor, thru tenant, is in actual possession of the land (in the concept of owner,
that is, if the lessor is NOT the owner; if he is the owner, he is called the possessor-
owner.) The tenant, by himself, is in actual possession in the concept of holder.
Possession in Another’s Name
1. Voluntary – by virtue of an agreement (e.g. when an agent possess for the
principal)
2. Necessary – (e.g. when a mother possesses for a child still in the maternal
womb
3. Unauthorized – this will become the principal's possession only after there has
been a ratification w/o prejudice to the effects of negotiorum gestio.
Right of the Landlord Himself to Bring Suit Against an Intruder
Q: If a tenant is ousted by an intruder, the tenant is undoubtedly given the right to
bring an action of forcible entry. But suppose it is the landlord himself who institutes
the suit against the intruder, would the action prosper?
- 34 -
A: YES. After all, the landowner was really in actual possession thru the tenant. Unless
he would be allowed this right, there is a danger he may eventually lose his possession
over the same, & suffer serious inconvenience. Under Art. 1673 of the CC, the tenant is
required to give notice to the owner of any usurpation w/c a stranger may do. It can be
inferred from this that the owner can maintain his possession, by suit, if essential.
Note: The visiting of a certain piece of land once in a while & declaring, for taxation
purposes, that the land belongs to me does NOT necessarily mean that I am in
possession of the lands. These facts, by themselves, do not show possession.
Note: The holding of an informacion possessoria or possessory information is
considered evidence of possession under Art. 394 of the Spanish Mortgage Law.
Art. 525. The possession of things or rights may be had in one of two concepts: either
in the concept of owner, or in that of the holder of the thing or right to keep or enjoy it,
the ownership pertaining to another person.
Concept of a Owner
• Other people believe thru my actions, that I am the owner of the property,
hence considered in the opinion of others as owner.
• This is regardless of my good faith or bad faith.
• A possessor in the concept of an owner is one who, whether in good faith or
bad faith, CLAIMS to be, and ACTS as if he is the owner.
• He thus recognizes no title of ownership in another, w/ respect to the property
involved.
• Whether he is in good faith or bad faith is immaterial.
Note: This is the possession that may ripen into ownership. This is also referred to as
adverse possession.
Examples of Adverse Possession
• The construction of permanent buildings
• Collection of rentals
• Harvesting of the fruits or fruit-bearing trees
• The giving of advice as to the boundaries of adjoining properties
• The payment religiously of taxes on the property
Concept of Holder
• I recognize another to be the owner
Examples of Possession in Concept of Holder
1. that of the tenant
2. that of the usufructuary
3. that of the depositary
4. that of the bailee in commodatum
Hence we distinguish between:
1. possession of the THING itself
2. possession of the RIGHT TO ENJOY the thing or benefit from it
Art. 526. He is deemed a possessor in good faith who is not aware that there exists in
his title or mode of acquisition any flaw which invalidates it.

He is deemed a possessor in bad faith who possesses in any case contrary to the
foregoing.
Mistake upon a doubtful or difficult question of law may be the basis of good faith.
Possession in Good Faith or Bad Faith
• it is useless to speak of an owner as a possessor in good faith or bad faith
(except insofar as to point out whether or not in the meantime he is entitled to
possess it)
• when Art. 526 distinguishes good and bad faith, there must be a flaw
• if aware of it, the possessor is in BAD faith
• if NOT aware, he is in GOOD faith
• if there is NO FLAW at all, the article should NOT APPLY
Possessor in Good Faith: One who exists in his TITLE or MODE of acquisition any
flaw w/c invalidates it
• good faith or lack of it is in the last analysis a question of intention
• it is a fact w/c is intangible, & is evidenced by external sighs
• the belief must be reasonable, not capricious
• while the possessor in good faith is one who BELIEVES he is the owner, the
possessor is in the concept of owner is one who ACTS as if he is the owner
Q: If a buyer knows at the time of purchase that the lot he is acquiring, is in the
possession of a person other than the seller, is he necessarily a buyer in bad faith?
A: NO. Because:
1. a possessor is not necessarily the owner of the property possessed
2. he may be possessing only a portion of the land involved, or his possession
may be w/ the knowledge and tolerance of the owner
3. the rights of a mere possessor are unavailing as against a seller who is armed
w/ a Torrens Title over the property involved
Possessor in Bad Faith: one who is NOT in good faith
Note: a person in bad faith is not entitled to the privilege of having a court give him a
longer term for the fulfilment of his obligation
Examples of a Possessor in Bad Faith
• if circumstances exist that require a prudent man to investigate, he will be in
bad faith if he does not investigate
• a party's mere refusal to believe that a defect exists or his wilful closing of his
eyes to the possibility of the existence of a defect in his vendor's title will NOT
make him an innocent purchaser for value if it afterwards develop that the
title was in fact defective
• a lessee who continues to stay on the premises after the expiration of the
lease contract is a usurper having no more right to the use & enjoyment of the
premises. He has become a possessor in bad faith.
• Purchaser from a suspected thief.
• Purchaser at a public auction sale of property subject to litigation or to a 3rd
party claim
• Purchaser from a person w/ a forged title
• Squatters on a church land who know it to be temporarily abandoned because
of war
- 35 -
• A purchaser from a tenant of the property, the purchaser knowing that the
property belonged to another
• Persons who take possession of hereditary estate of a relative & deliberately
excluded from the estate the child of the deceased
• A buyer of land already in the peaceable possession of person other than the
seller, who does not inquire into the status of the land or the title of the seller
of the property should be considered one in bad faith & must suffer the
consequences of the risk taken
• While one who buys from the registered owner does NOT need to look behind
the certificate of title, one who buys from one who is NOT the registered
owner is expected to examine not only the certificate of title but all factual
circumstances necessary for him to determine if there are any flaws I the title
of the transferor, or in his capacity to transfer land. The failure of the
purchaser to make necessary investigation constitutes lack of good faith. Not
being a purchaser in good faith, he is NOT entitled to the rights of a registered
owner.
• A person who is aware of the defects of his predecessor's title
Bad Faith
• Bad faith or malice implies a conscious & intentional design to do a wrongful
act for a dishonest purpose or moral obliquity
• Bad faith is different from the negative idea of negligence in that malice or bad
faith contemplates a state of mind affirmatively operating w/ a futive design or
ill-will
• Breach of a known duty thru some motive
• It partakes of the nature of fraud
Mistake on a Doubtful or Difficult Question of Law
• This may be a basis of good faith (provided that such ignorance is not gross &
therefore inexcusable)
• It is true that “ignorance of the law excuses no one from compliance therewith
but error in the application of the law, it the legal solutions rising from such
application, & the interpretation of doubtful doctrine can still make a person a
transgressor, violator or possessor in good faith. For indeed, ignorance of the
law may be based on an error of fact.
Bad Faith is Personal
• Just because a person is in bad faith (knows of the defect or flaw in his title)
does not necessarily mean that his successors-in-interest are also in bad faith
Art. 527. Good faith is always presumed, and upon him who alleges bad faith on the
part of a possessor rests the burden of proof.
Presumption: Good faith
Reason: the presumption of innocence is given because every person should be
presumed honest till the contrary is proved
Art. 528. Possession acquired in good faith does not lose this character except in the
case and from the moment facts exist which show that the possessor is not unaware
that he possesses the thing improperly or wrongfully.

When Possession in Good Faith is Converted to Possession in Bad Faith
• From the moment facts exist showing the possessor's knowledge of the flaw,
form the time should he be considered a possessor in bad faith
• It doesn't matter whether “facts” were caused by him or some other person
When Bad Faith Begins
• Existence of bad faith may begin either from the receipt of judicial summons,
or even before such time as when a letter is received from the true owner
asking the possessor to stop planting on the land because somebody else
owns it
• What the possessor should do upon receipt of the letter would be to
investigate; and if he does not, but is later on defeated, bad faith should be
counted from the time he 1st received the letter
• Although receipt of summons will ordinarily produce a conversion from good
faith to bad faith, it may be possible that a possessor will still be convinced of
the righteousness of his cause, thus preserving his original good faith
• If he was originally in good faith, he wouldn't be responsible in case of loss
thru fortuitous event, even if the loss should occur during the trial. On the
other hand, had he really been in bad faith all the time, the loss by fortuitous
event would not excuse him
Art. 529. It is presumed that possession continues to be enjoyed in the same character
in which it was acquired, until the contrary is proved.
Some Presumptions Regarding Possession
1. good faith
2. continuity of character of possession
3. non-interruption of possession
4. presumption of just title
5. non-interruption of possession of property unjustly lost but legally recovered
6. possession during intervening period
7. possession of movables w/ real property
8. exclusive possession of common property
Art. 530. Only things and rights which are susceptible of being appropriated may be the
object of possession.
What may be possessed? What may NOT be possessed?
Only those things & rights w/c are • Property of public domain
susceptible of being appropriated • Res communes
(hence only PROPERTY may be • Easements (if discontinuous or non-apparent)
the object of possession) • Things specifically prohibited by law
Res Nullius (abandoned or ownerless property)
• May be possessed but cannot be acquired by prescription
• Reason: prescription presupposes prior ownership in another
• However, “res nullius” may be acquired by occupation
CHAPTER 2: ACQUISITION OF POSSESSION
- 36 -
Art. 531. Possession is acquired by the material occupation of a thing or the exercise of
a right, or by the fact that it is subject to the action of our will, or by the proper acts
and legal formalities established for acquiring such right.
How is Possession Acquired?
1. by material occupation (detention) of a thing or the exercise of a right (quasi-
possession); this includes:
a. constitutum possessorium: when a person who possessed property as an
owner, now possesses it in some other capacity (e.g. lessee/depositary)
b. traditio brevi manu: when a person who possessed property not as an
owner (e.g. lessee), & now possesses it as owner
2. by subjection to our will; this includes:
a. tradition longa manu: delivery by the long hand or delivery by consent or
mere pointing
b. tradition simbolica: delivery of keys
3. by constructive possession or proper acts & legal formalities
a. succession
b. donation
c. execution of public instruments
d. possession by a sheriff by virtue of a court order
Symbolic Delivery
• in the absence of stipulation of the parties that the ownership of a thing sold
shall not pass to the purchase until he has paid the full purchase price, the
execution of the sale thru a public instrument shall be equivalent to the
delivery of the thing.
• If, however, notwithstanding the execution of the instrument, the purchaser
CANNOT have the enjoyment & material tenancy of the thing and make use of
it himself because such tenancy & enjoyment are opposed by another, then
delivery has NOT been effected.
• Symbolic delivery holds true when there is not impediment that may prevent
the passing of the property from the hands of the vendor into those of the
vendee.
Essential Requirements for Possession
1. the corpus – the thing physically detained
2. the animus – intent to possess
Constructive Possession of Land
• if an entire parcel is possessed under claim of ownership, there is constructive
possession of the entire parcel, UNLESS a portion thereof is adversely
possessed by another
• the area must however be w/in reasonable limits – it is not enough to merely
plant a sign
Art. 532. Possession may be acquired by the same person who is to enjoy it, by his
legal representative, by his agent, or by any person without any power whatever: but
in the last case, the possession shall not be considered as acquired until the person in
whose name the act of possession was executed has ratified the same, without
prejudice to the juridical consequences of negotiorum gestio in a proper case.

Acquisition of Possession from Essential requisites
the Viewpoint of who Possesses
1. for personal acquisition intent to possess
capacity to possess
object must be capable of being possessed
2. thru an authorized person intent to posses for the principal (not for agent)
(agent or legal representative) authority or capacity to possess (for another)
principal has intent & capacity to possess
3. thru an unauthorized person intent to possess for another (the “principal”)
(but only if subsequently ratified) capacity of the “principal” to possess
ratification by “principal”
Negotiorum Gestio does NOT arise in either of these instances
1. when the property or business is not neglected or abandoned
2. if in fact the manager has been tacitly authorized by the owner
Art. 533. The possession of hereditary property is deemed transmitted to the heir
without interruption and from the moment of the death of the decedent, in case the
inheritance is accepted.
One who validly renounces an inheritance is deemed never to have possessed the
same.
Note: Art. 533 speaks of acquisition of possession thru succession mortis causa
Time of Acquisition of Possession
1. if heir ACCEPTS – from the moment of death since there is no interruption
(possession of the deceased should be added to the possession of the heir)
2. if heir REFUSES (or he is incapacitated to inherit) – he is deemed to NEVER
have possessed the same
Art. 534. On who succeeds by hereditary title shall not suffer the consequences of the
wrongful possession of the decedent, if it is not shown that he was aware of the flaws
affecting it; but the effects of possession in good faith shall not benefit him except from
the date of the death of the decedent.
Some Effects of Acquisition of Possession, thru Succession
• If the father or decedent was in bad faith it does NOT necessarily mean that the
son was also in bad faith. The son is presumed to be in GOOD FAITH.
• In the computation of time necessary for prescription, the son may complete the
period necessary for prescription by TACKING his possession to that of his
father. However, if the father was in bad faith, the consequences of the good
faith of the son should be counted only from the date of the father's death.
Note: if the father had been in good faith, this article is NOT APPLICABLE, for the son
would not “suffer”. In such a case, the possession of the father in good faith is added
to the possession of the son in good faith, & we cannot say that the effects of
possession in good faith shall commence only from the decedent's death
- 37 -
Art. 535. Minors and incapacitated persons may acquire the possession of things; but
they need the assistance of their legal representatives in order to exercise the rights
which from the possession arise in their favor.
Persons Referred to in this Article
1. minors
2. minors emancipated by parental concession or by marriage (e.g. like
possession of real property)
3. other incapacitated persons
a. the insane
b. the prodigal or spendthrift
c. those under civil interdiction
d. deaf-mutes (those labouring under restrictions on capacity to act)
Nature of their Possession
• possession by them is allowed only in those matters where they have capacity
to act and NOT possession where juridical acts are imperative like the
possession of land the ownership of w/c he desires to test in court
Acquisition by Prescription
• Minors & other incapacitated persons may acquire property or rights by
prescription, either personally or thru their parents, guardians or legal reps.
Art. 536. In no case may possession be acquired through force or intimidation as long
as there is a possessor who objects thereto. He who believes that he has an action or a
right to deprive another of the holding of a thing, must invoke the aid of the competent
court, if the holder should refuse to deliver the thing.
Modes thru w/c Possession Cannot be Acquired
1. force or intimidation (as long as there is a possessor who objects thereto;
objection may be made by suit of forcible entry w/in a year from the
dispossession, otherwise, the possession de facto is lost)
2. mere tolerance or permission (mere inaction or mere failure to bring an action
is NOT tolerance referred to in the law)
3. clandestine, secret possession, or possession w/o knowledge (for this would
be possession by stealth, & not open or public) clandestine possession by itself
is hidden or disguised possession & may be w/ or w/o the owner's knowledge
How to Recover Possession
1. if a person has been deprived of possession, he cannot take the law into his
own hands
2. he should request the usurper to give up the thing
3. if the usurper refuses, he should invoke the aid of the proper & competent
court
4. otherwise the owner can be made the defendant in a forcible entry case w/ al
its repercussions
Art. 537. Acts merely tolerated, and those executed clandestinely and without the
knowledge of the possessor of a thing, or by violence, do not affect possession.

Case Doctrines on Tolerance
• if a person squats on another's property because of “tolerance”, the latter may
sue for ejectment
• when one stays on a parcel of land merely by tolerance, & having recognized
ownership in another, they cannot now claim that their possession was
adverse
Possession by Squatter
• a squatter's possession, when there is no violence, is by mere tolerance
• the 1 year period for filing an unlawful detainer case against him should not be
counted fro the beginning of the possession, but from the time the latest
demand to vacate is made, unless in the meantime an accion publiciana is
instituted
• squatting is a continuing offense (but it has now been decriminalized)
- 38 -
Art. 538. Possession as a fact cannot be recognized at the same time in two different
personalities except in the cases of co-possession. Should a question arise regarding
the fact of possession, the present possessor shall be preferred; if there are two
possessors, the one longer in possession; if the dates of the possession are the same,
the one who presents a title; and if all these conditions are equal, the thing shall be
placed in judicial deposit pending determination of its possession or ownership through
proper proceedings.
GR: Possession as a fact cannot be recognized at the same time in 2 different
personalities.
Exceptions:
1. co-possessors (since here, there is no conflict of interest, both of them acting
as co-owners, as in the case of property owned or possessed in common)
2. possession in different concepts or different degrees

Clandestine Possession Rules/Criteria to be used in Case of Conflict or Dispute Regarding Possession

• secret possession 1. present possessor shall be preferred
• possession by stealth 2. if both are present, the one longer in possession
• for clandestine possession to affect the owner's possession, the possession 3. if both began to possess at the same time, the one who presents (or has) a
must also be unknown to the owner title
• if it is secret to many, but known to the owner, his possession is affected 4. if both present a title, the Court will determine (the thing will be judicially
• presumption: when the possession is clandestine, it is also unknown to the deposited)
owner
When Art. 538 Applies
Possession by Force or Violence • it applies to preference of POSSESSION whether real or personal property is
• force may be proved expressly or impliedly involved
• e.g. the act of entering into the premises & excluding the lawful possessor • it also applies whether the possession was longer or shorter than 1 year
therefrom necessarily implies the exertion of force over the property
When Art. 1544 Applies
The Force May Be: 1. applies to preference of OWNERSHIP in case of double sale/double donation
1. actual or merely threatened 2. MOVABLE property – preference in ownership is given to the person who 1st
2. done by possessor himself or by his agent possessed it in good faith
3. done against the owner or against any other possessor or against the owner's 3. IMMOVABLE property – preference in ownership is given
representative, such as a capataz a. To the 1st who registered his right in good faith in the Registry of Property
4. done to oust possessor; or if occupied during the latter's absence, done to b. If there was no registration, to the person who 1st possessed in good faith
prevent his getting back the premises c. If there was no possession, to the person who presents the oldest title,
provided that the title had been acquired in good faith
Meaning of “Acts… do not affect possession”
1. the intruder does not acquire any right to possession (NO LEGAL Conflict Between a Sale and a Mortgage
POSSESSION) • The unrecorded sale of prior date of real property by virtue of a public
2. the legal possessor, even if physically ousted, is still the possessor & therefore instrument is preferred over a recorded mortgage of a later date because if
a. still entitled to the benefits of prescription the original owner had parted w/ his ownership over the thing sold, he no
b. still entitled to the fruits longer had the ownership & free disposal of that thing so as to be able to
c. still entitled as possessor for all purposes favourable to his possession mortgage it
3. the intruder cannot acquire the property by prescription • Thus, registration of the mortgage under Act. 3344 would be of no moment
since it is understood to be w/o prejudice to the better right of 3rd parties
OLD LAW NEW LAW • Nor would it avail the mortgagee any to assert that he is in actual possession
Prescription was possible even if entry Possession for prescription has to be in of the property for the execution of the conveyance in a public instrument
into the premises was effected thru the concept of an owner, public & earlier was equivalent to the delivery of the thing sold to the vendee
violence, for the law said “in whatever peaceful & uninterrupted. Reason for • A contract should be construed as a mortgage or a loan instead of a pacto de
way such occupancy may have “peaceful” is that violence/usurpation retro sale when its terms are ambiguous or the circumstances surrounding its
commenced or instituted” must be condemned. execution or its performance are incompatible or inconsistent w/ a sale

• Reason: in a contract of mortgage, the mortgagor merely subjects the
property to a lien, but the ownership & possession thereof are retained by him
Co-Possession
• Co-possessors of a parcel of land that is mortgaged must be made parties to
foreclosure proceedings, otherwise they cannot be deprived of possession of
that portion of the land actually possessed by them
CHAPTER 3: EFFECTS OF POSSESSION
Art. 539. Every possessor has a right to be respected in his possession; and should he
be disturbed therein he shall be protected in or restored to said possession by the
means established by the laws and the Rules of Court.
A possessor deprived of his possession through forcible entry may within ten
days from the filing of the complaint present a motion to secure from the competent
court, in the action for forcible entry, a writ of preliminary mandatory injunction to
restore him in his possession. The court shall decide the motion within thirty (30) days
from the filing thereof.
3 Important Things
1. right of a person to be respected in his possession (1st effect of possession)
2. protection in said right or restoration to said possession thru legal means
3. the writ of preliminary mandatory injunction
Note: an adverse possession of property by another is not an encumbrance in law, &
does not contradict the condition that property be free from encumbrance
Reason for Protection of Possession
1. possession is very similar to ownership, & as a matter of fact modifies
ownership
2. possession almost invariably gives rise to the presumption that the possessor
is the owner
“Every Possessor”
• indicates all kinds of possession, from that of the owner to that of a mere
holder, except that w/c constitutes a crime, should be respected & protected
by the means established by law & the rules of procedure
Note: The doctrine of exhaustion of administrative remedies is inapplicable to a party
who claims the disputed land as his OWN PRIVATE property.
Reasons for Requiring Legal Means for Restoration to Possession
1. to prevent spoliation or a disregard of public order
2. to prevent deprivation of property w/o due process of law
3. to prevent a person from taking the law into his own hands
Writ of Preliminary Mandatory Injunction
• GR: an injunction cannot substitute for other actions to recover possession;
this Is because in the meantime, the possessor has in his favour, the
presumption of rightful possession, at least till the case is finally decided
• Exception: in case of usurpation
- 39 -
• BUT the CC allows in the meantime the writ of preliminary mandatory
injunction because there are at present prolonged litigations between the
owner & the usurper, & the former is frequently deprived of his possession
even when he has an immediate right thereto
Note: The writ of preliminary mandatory injunction cannot be granted w/o notice & a
hearing where the adverse party can be held & this is true even in connection w/ the
filing of a case of forcible entry. The notice here is addressed to the defendant.
Requisites for the Issuance of the Writ
1. in forcible entry cases – file w/in 10 days from the time the complaint for
forcible entry is filed
2. in unlawful detainer cases – file w/in 10 days from the time the appeal is
perfected, only if
a. the lessee's appeal is frivolous or dilatory
b. the lessor's appeal is prima facie meritorious
Purpose of a Preliminary Mandatory Injunction
• for the preservation or protection of their rights or interests
• it may issue in cases of extreme urgency, where the right is very clear, where
consideration of relative inconvenience bear strongly in complainant's favour,
where there is a wilful & unlawful invasion of plaintiff's right against his protest
& remonstrance, the injury being a continuing one, & where the effect of the
mandatory injunction is rather to re-establish & maintain a pre-existing
continuing relation bet. the parties, recently & arbitrarily interrupted by the
defendant, than to establish a new relation
Art. 540. Only the possession acquired and enjoyed in the concept of owner can serve
as a title for acquiring dominion.
Possession in the Concept of Owner
• he may eventually become the owner by prescription
• a possessor merely in the concept of holder cannot acquire prescription by
acquisitive prescription
Possession in the Concept of Holder
1. lessees or those merely permitted to occupy
2. trustees, including:
a. parents over the properties of their minor children or insane children
b. husband & wife over each other's properties, as long as the marriage
lasts, & even if there be a separation of property w/c had been agreed
upon in a marriage settlement or by judicial decree
3. antichretic creditors
4. agents
5. attorneys
6. depositaries
7. co-owners (unless the co-ownership is clearly repudiated by unequivocal acts
communicated to the other co-owners)
Note: while a trust may be repudiated, this is not allowed if the beneficiary is a minor
or insane because it is hard for the latter to protect his rights

Payment of Land Taxes — Usefulness
• while tax declarations & receipts are NOT conclusive evidence of ownership,
yet, when coupled w/ proof of actual possession, tax declarations & receipts
are strong evidence of ownership
- 40 -
Applicability of Article
1. whether the possessor is in good faith or bad faith
2. whether the possession be in one's own name or in another's
3. whether the possession be in concepto de duendo or in the concept of holder

Art. 541. A possessor in the concept of owner has in his favor the legal presumption Note: Rights are NOT included w/in the scope of the presumption, only real or personal
that he possesses with a just title and he cannot be obliged to show or prove it. THINGS

2 Requisites to Raise the Disputable Presumption of Ownership Art. 543. Each one of the participants of a thing possessed in common shall be deemed
1. one must be in possession (actual or constructive) to have exclusively possessed the part which may be allotted to him upon the division
2. the possession must e in the concept of owner (not mere holder) thereof, for the entire period during which the co-possession lasted. Interruption in the
possession of the whole or a part of a thing possessed in common shall be to the
POSSESSION IS PRESUMED OWNERSHIP prejudice of all the possessors. However, in case of civil interruption, the Rules of Court
shall apply.
Reasons for Presumption
1. presumption that one is in good faith – or that one is innocent of wrong “shall be deemed” – does NOT establish a mere presumption; it gives a right
2. inconvenience of carrying proofs of ownership around
Rules to Apply to Civil Interruption
JUST TITLE IN POSSESSION JUST TITLE IN PRESCRIPTION 1. civil interruption is produced by judicial summons to the possessor
Just title here is presumed Just title here must be proved 2. judicial summons shall be deemed NOT to have been issued, & shall not give
Just title here means “titulo verdadero y Just title here means “titulo colorado” rise to interruption:
valido” (true & valid title sufficient to (merely colourable title although there a. if it should be void for lack of legal solemnities
transfer ownership) was a mode of transferring ownership, b. if the plaintiff should desist from the complainant or should allow the
the grantor was NOT the owner) proceedings to lapse
c. if the possessor should be absolved from the complaint
KINDS OF TITLES (TITULOS) Note: in all these cases, the period of interruption shall be counted FOR the
TRUE & • a title w/c by itself is sufficient to transfer ownership w/o the prescription
VALID necessity of letting the prescriptive period elapse
TITLE • there was a mode of transferring ownership & the grantor was the Art. 544. A possessor in good faith is entitled to the fruits received before the
owner possession is legally interrupted.
COLORABLE • that title where, although there was a mode of transferring Natural and industrial fruits are considered received from the time they are
TITLE ownership, still something is wrong, because the grantor is NOT the gathered or severed.
owner Civil fruits are deemed to accrue daily and belong to the possessor in good
PUTATIVE • that title where although a person believes himself to be the owner, faith in that proportion.
TITLE he nonetheless is not, because there was no mode of acquiring
ownership Reason for the Law
• Justice demands that the fruits be retained by the possessor who thought that
ORDINARY PRESCRIPTION EXTRAORDINARY PRESCRIPTION he was really the owner of the property, & who, because of such thought had
needs GOOD FAITH & JUST TITLE does NOT need good faith or just title regulated his daily life, income & expenses by virtue of such fruits.
• The possessor should be rewarded for having contributed to the INDUSTRIAL
WEALTH, unlike the owner, who by his presumed negligence, had virtually
Q: Suppose I really own & possess a piece of land. Do I have to tell everybody that I
discarded his property
am claiming the land as my own, i.e., do I have to show adverse possession?
A: NO. Said adverse possession is needed only if I want to acquire something by
Fruits: refers to natural, industrial & civil fruits, & not to other things
prescription. In my case, I do not need prescription since I am already the owner of the
land.
Legal Interruption
• Happens when a complaint is filed against him & he receives the proper
Note: a person who is NOT in fact in possession cannot acquire a prescriptive right to
judicial summons
the land by mere assertion of a right therein
• All fruits accrued & received since said date must be turned over to the
winner, that is, ether the owner or the lawful possessor adjudged as such by
Art. 542. The possession of real property presumes that of the movables therein, so the court
long as it is not shown or proved that they should be excluded.
 - 41 -
• Before legal interruption, the fruits received are his own Art. 546. Necessary expenses shall be refunded to every possessor; but only the
• After the receipt of the judicial summons, the right to get the fruits not yet possessor in good faith may retain the thing until he has been reimbursed therefor.
gathered ceases Useful expenses shall be refunded only to the possessor in good faith with the
• The reason why fruits should be returned only from the TIME of legal same right of retention, the person who has defeated him in the possession having the
interruption is that it is ordinarily ONLY from said date that the possessor option of refunding the amount of the expenses or of paying the increase in value
should be considered in BAD FAITH which the thing may have acquired by reason thereof.
• Possessors in bad faith are not entitled to the fruits
EXPENSES RIGHTS OF POSSESSOR
When Natural & Industrial Fruits are Considered Received
NECESSARY EXPENSES 1. if in good faith
• If at the time of legal interruption, the crops are still growing, the rule on • those w/o w/c the thing would physically • refund
pending crops, not that on gathered crops, should apply • retain premises till paid
deteriorate or be lost
• If at the time of legal interruption, the crops have already been gathered, but • those made for the preservation of the thing 2. if in bad faith
are sold only after such interruption, the sale is immaterial, for the law EXAMPLES • ONLY refund
requires only a gathering or severance 1. cultivation, production, & upkeep • NO right of retention
2. necessary repairs for the house
When Civil Fruits are Deemed to Accrue
3. ordinary repairs: required by the wear &
• If civil fruits (e.g. rents) accrue daily, Art. 545 does not apply
tear due to natural use of the thing & are
• Actual receipt of the rents is immaterial
indispensable for its preservation; they
don't increase the thing's value but merely
Art. 545. If at the time the good faith ceases, there should be any natural or industrial prevent the things from becoming useless
fruits, the possessor shall have a right to a part of the expenses of cultivation, and to a 4. urgent repairs
part of the net harvest, both in proportion to the time of the possession. USEFUL 1. if in good faith
The charges shall be divided on the same basis by the two possessors. • adds value to the property • reimbursement of either the
The owner of the thing may, should he so desire, give the possessor in good • increases the object's productivity amount spent or the increase in
faith the right to finish the cultivation and gathering of the growing fruits, as an • for satisfaction of spiritual/religious yearnings value, at the owner's option
indemnity for his part of the expenses of cultivation and the net proceeds; the • gives rise to all kinds of fruits • right of retention till paid
possessor in good faith who for any reason whatever should refuse to accept this EXAMPLES • right of removal provided no
concession, shall lose the right to be indemnified in any other manner. 1. irrigation system substantial damage or injury is
2. erection of a chapel cause to the principal, reducing its
Applicability of the Article 3. making of artificial fishponds value
• applies to PENDING fruits, natural or industrial 4. construction of addt'l rooms in a house 2. if in bad faith
• still applies to crops that have already been planted but are not yet manifest 5. clearing up land formerly thickly covered w/ • NOT ENTITLED to any right
at the time there is a transfer of possession trees & shrubbery regarding the useful expenses
• applies only to possessors in good faith for the possessor in bad faith has no LUXURY/ORNAMENTAL 1. if in good faith
right whatsoever to fruits already gathered nor to fruits still pending, except • Those w/c add value to the thing only for • no right of refund/retention
that in the former case (gathered fruits), he gets back the necessary expenses certain determinate persons in view of their • removal allowed if no substantial
for production, gathering, & preservation of fruits particular whims injury caused
• Neither essential for preservation nor useful • owner has OPTION to allow:
Sharing of Expenses & Charges - possessor to remove, or
to everybody in general
• the expenses for cultivation shall also be divided pro rata EXAMPLES - retain for himself the ornament
• the better rule would be for the expenses to be borne in proportion to what 1. hand paintings on the wall of a house by refunding the amount
each receives from the harvest, otherwise, unjust enrichment results 2. a garage made of platinum 2. if in bad faith
3. water fountain in gardens • no right of refund or retention
Probative Effect of Fruit Gathering: does not necessarily negate ownership of the • removal allowed if no substantial
land in another person injury is caused
• owner has OPTION to allow:
Similar Rules
- possessor to remove, or
1. Art. 567 – in case of change of usufruct
- retain for himself the ornament
2. Art. 1617 – in case of conventional redemption
by refunding the value it has at
the time owner enters into
possession
 - 42 -
The ff. are NOT Necessary Expenses Note: the possessor in bad faith is duty bound to render an accounting of the fruits
1. those incurred for the filling up w/ soil of a vacant or deep lot received or could have been received & must pay damages amounting to a reasonable
2. a house constructed on land possessed by a stranger, because the house rent for the term of his possession
cannot be said to preserve the land
3. land taxes are not necessary expenses for the preservation of the land itself, Art. 550. The costs of litigation over the property shall be borne by every possessor.
but for its continued possession
4. unnecessary improvements on a parcel of land purchased at a sheriff's auction Every Possessor: one in good faith or bad faith, in the concept of owner or holder, in
sale, made just to prevent redemption from taking place one's own name or that of another, & not to the owner or the person adjudged by the
5. expenses made by the possessor – not to preserve the property or to save it court to be lawfully entitled to possess
form being lost – but to enable him to use the property for his own purposes
Litigation: court action
Why NO RIGHT Given to Possessors in Bad Faith Regarding to Useful Expenses
1. the law omits his right to useful expenses Art. 551. Improvements caused by nature or time shall always insure to the benefit of
2. the law provides that a builder in bad faith loses whatever is built w/o the person who has succeeded in recovering possession.
payment of any indemnity
Neither the Possessor in Good Faith or Bad Faith is Entitled to:
Art. 547. If the useful improvements can be removed without damage to the principal 1. improvements caused by NATURE
thing, the possessor in good faith may remove them, unless the person who recovers 2. improvements caused by TIME
the possession exercises the option under paragraph 2 of the preceding article.
Reason for the Law: these accrue to the owner or legitimate possessor, so no
Damage: a substantial one that reduces the value of the property reimbursement occurs
• thus a slight injury curable by an ordinary repair does not defeat the right of
removal, but the repairs should be chargeable to the possessor, for it is he Art. 552. A possessor in good faith shall not be liable for the deterioration or loss of the
who benefits by the removal & the object removed thing possessed, except in cases in which it is proved that he has acted with fraudulent
intent or negligence, after the judicial summons.
Art. 548. Expenses for pure luxury or mere pleasure shall not be refunded to the A possessor in bad faith shall be liable for deterioration or loss in every case, even if
possessor in good faith; but he may remove the ornaments with which he has caused by a fortuitous event.
embellished the principal thing if it suffers no injury thereby, and if his successor in the
possession does not prefer to refund the amount expended.
POSSESSOR BEFORE RECEIPT OF AFTER
Art. 549. The possessor in bad faith shall reimburse the fruits received and those which
JUDICIAL SUMMONS JUDICIAL SUMMONS
the legitimate possessor could have received, and shall have a right only to the
IN GOOD Not liable Not liable - Loss or deterioration thru
expenses mentioned in paragraph 1 of Article 546 and in Article 443. The expenses
incurred in improvements for pure luxury or mere pleasure shall not be refunded to the FAITH fortuitous event
Liable – thru fraudulent intent or
possessor in bad faith, but he may remove the objects for which such expenses have
negligence
been incurred, provided that the thing suffers no injury thereby, and that the lawful
IN BAD Whether before or after judicial summons, and whether due to
possessor does not prefer to retain them by paying the value they may have at the
FAITH fortuitous event or not, such possessor is LIABLE.
time he enters into possession.

RIGHTS OF A POSSESSOR (IN CONCEPT OF OWNER) REGARDING FRUITS Art. 553. One who recovers possession shall not be obliged to pay for improvements
GOOD Gathered/severed/harvested fruits pending or ungathered fruits (pro- which have ceased to exist at the time he takes possession of the thing.
Art. 554. A present possessor who shows his possession at some previous time, is
FAITH are his own rating between possessor & owner of
expenses, net harvest & charges) presumed to have held possession also during the intermediate period, in the absence
of proof to the contrary.
BAD Gathered fruits - must return Pending or gathered fruits – no rights
Art. 555. A possessor may lose his possession:
FAITH value of fruits already received as at all, not even to expenses for
(1) By the abandonment of the thing;
well as value of fruits w/c the cultivation because by accession, all
(2) By an assignment made to another either by onerous or gratuitous title;
owner or legitimate possessor should belong to the owner, w/o
(3) By the destruction or total loss of the thing, or because it goes out of commerce;
could have received w/ due care or indemnity
(4) By the possession of another, subject to the provisions of Article 537, if the new
diligence, minus necessary
possession has lasted longer than one year. But the real right of possession is not lost
expenses for cultivation, gathering
till after the lapse of ten years.
& harvesting, to prevent the owner
from being unjustly enriched

WAYS OF LOSING POSSESSION
1. thru the possessor’s 1. abandonment.
voluntary will & intent 2. possession of another for more than 1 year
1. possession of another for more than 1 year
2. final judgment in favor of another w/ a better right
2. against the 3. expropriation
possessor’s will 4. prescription in favor of another
5. recovery or reivindication by the legitimate owner or
possessor
1. destruction or total loss of the thing
2. going out of commerce
3. because of the object
3. escaping from possessor's control
Abandonment: the voluntary renunciation of a thing
Requisites of Abandonment
1. the abandoner must have been a possessor in the concept of owner
2. the abandoner must have the capacity to renounce or alienate
3. there must be a physical relinquishment of the thing/object
4. there must be no more spes recuperandi( (expectation to recover) & no more
animus revertendi (intent to return or to get back)
Doctrines on Abandonment
• a property owner cannot be held to have abandoned the same until at least he
has some knowledge of the loss of its possession or the thing
• there is no real intention to abandon property when, as in the case of a
shipwreck or fire, things are thrown into the sea or upon the highway
• an owner may abandon possession merely, leaving ownership in force, but a
mere possessor cannot abandon ownership since he never had the same
• if an owner has not lost possession because there has been no abandonment,
it cannot be acquired by another thru acquisitive prescription
• there is no abandonment if an owner merely tolerated another's possession,
nor if the latter was done by stealth, force and intimidation
• there is no abandonment of movables even if there is temporary ignorance of
their whereabouts, so long as they remain under the control of the possessor
• in true abandonment, both possession de facto & de jure are lost
• abandonment w/c converts the thing into res nullius does not apply to land;
much less does abandonment apply to registered land
Assignment: the complete transmission of ownership rights to another person,
onerously or gratuitously
ASSIGNMENT ABANDONMENT
At no time did the thing have a There was a time, no matter how short, when
possessor the object did no have a possessor at all
Possession of Another
• if a person is not in possess for more than 1 year (but less than 10 years), he
loses possession de fact
▪ in such a case he can no longer bring an action of forcible entry or
unlawful detainer
- 43 -
▪ constructive possession is also lost
• if a person loses possession for more than 10 years, he loses possession de
jure, or the real right of possession
▪ an accion publiciana or reivindicatoria is still possible unless prescription
has set in
Destruction, Total Loss, & Withdrawal from Commerce
• a thing is lost when it perishes, goes out of commerce, or disappears in such a
way that its existence is unknown or it cannot be recovered
• partial loss in general results only in the loss of possession of the part lost
• if by the erosive action of the sea, it is essential for a landowner to set up a
barrier or retaining wall to prevent his land from being covered by the high
tide, this necessity by itself constitutes as yet no loss
Note: Art. 555 refers to both real & personal property for the law does not distinguish
Art. 556. The possession of movables is not deemed lost so long as they remain under
the control of the possessor, even though for the time being he may not know their
whereabouts.
WHEN POSSESSION OF WHEN POSSESSION OF
MOVABLES IS LOST MOVABLES IS NOT LOST
if the possessor has no idea at all about when he more or less knows its general
the whereabouts of the movable location
He has lost juridical control The object remains w/in his patrimony
Art. 557. The possession of immovables and of real rights is not deemed lost, or
transferred for purposes of prescription to the prejudice of third persons, except in
accordance with the provisions of the Mortgage Law and the Land Registration laws.
Art. 558. Acts relating to possession, executed or agreed to by one who possesses a
thing belonging to another as a mere holder to enjoy or keep it, in any character, do
not bind or prejudice the owner, unless he gave said holder express authority to do
such acts, or ratifies them subsequently.
Art. 559. The possession of movable property acquired in good faith is equivalent to a
title. Nevertheless, one who has lost any movable or has been unlawfully deprived
thereof may recover it from the person in possession of the same.
If the possessor of a movable lost or which the owner has been unlawfully deprived,
has acquired it in good faith at a public sale, the owner cannot obtain its return without
reimbursing the price paid therefor.
WHEN POSSESSION OF A MOVABLE IS EQUIVALENT TO TITLE
In BAD FAITH Never equivalent to title
In GOOD FAITH GR: equivalent to title
Exception (when not equivalent to title) when the owner had LOST
it or had been UNLAWFULLY DEPRIVED of it
Exception to the exception: unless the possessor had acquired it in
good faith at a public sale, where the public had properly been
notified
Good Faith: the possessor is of the belief that the person from whom he received the
thing was its owner & could transfer valid title thereto

Title: the juridical act transferring or conferring ownership; and not a document
Lost: missed or misplaced
Unlawfully Deprived: taken by another thru a crime such as theft, robber, estafa
Summary of Recovery or Non-Recovery Principle
1. owner MAY RECOVER W/O REIMBURSEMENT
a. from possessor in bad faith
b. from possessor in good faith (if owner had LOST the property or been
unlawfully deprived of it) (the acquisition being from a private person)
2. owner MAY REIMBURSE but should REIMBURSE
a. if possessor acquired the object in good faith at a PUBLIC SALE/AUCTION
3. owner CANNOT RECOVER, even if he offers to REIMBURSE (w/n the owner had
lost or been unlawfully deprived)
a. of possessor had acquired it in good faith by purchase from a merchant's
store, or in fairs, or markets
b. ESTOPPEL - if owner is by his conduct precluded from denying the seller's
authority to sell
c. If possessor had obtained the goods because he was an innocent
purchase for value & a holder of a NEGOTIABLE document of title to the
goods
Note: The mere registration of a sale does not make the sale a PUBLIC SALE as
referred to in Art. 549, for a public sale is one where after due notice to the public,
bidders are allowed to bid for the objects they desire to purchase.
Possession of Stolen Property
• It is a disputable presumption that a person found in possession of a thing
taken in doing of a recent wrongful act is the taker & doer of the whole act
• The one who possesses a movable, acquired in good faith, has what is called
an equivalent of title, but this is destroyed when it is proved that said movable
belongs to somebody else who has lost it, or has been unlawfully deprived of
its possession
Purpose of Art. 559
• For the purpose of facilitating transactions on movable property w/c are
usually done w/o special formalities, this article establishes not only a mere
presumption in favour of the possessor of the chattel, but an actual right, valid
against the true owner, except upon proof of loss or illegal deprivation.
How to Contest the Title of a Possessor in Good Faith
• The true owner should present sufficient proof of the identity of the object
AND that he had either lost it or has been illegally deprived of it
• This proof is an indispensable requisite a condition sine qua non in order that
the owner of the chattel may contest the apparent title of its possessor
• W/o adequate proof of such loss or illegal deprivation, the present holder
cannot be put on his defense, even if as possessor he has no actual propriety
title to the movable property in question
- 44 -
Rule When Possessor Has Already Become the Owner
• Art. 559 in fact assumes that the possessor is as yet not the owner, for it is
obvious that where the possessor has come to acquire indefeasible title, no
proof of loss, or illegal deprivation could avail the former owner of the chattel
• He would no longer be entitled to recover it under any condition
Art. 560. Wild animals are possessed only while they are under one's control;
domesticated or tamed animals are considered domestic or tame if they retain the
habit of returning to the premises of the possessor.
Possession of Wild Animals: One's possession of wild animals is lost when they are
under ANOTHER'S control or under NO ONE'S control (as when they have regained
their NATURAL FREEDOM and have become res nullius).
Reason: Possession of them was possible only when power or force could be exercised
over them. Eliminate that control, and you can eliminate possession automatically.
Domesticated or Tamed Animals: Wild animals w/c have become tame & now
generally submit to man's control
Rules
1. the possessor does NOT lose possession of them – AS LONG AS habitually
they return to the possessor's premises
2. possession of them is lost if the aforementioned habit has ceased
Note: But insofar as OWNERSHIP is concerned, Art. 716 applies
Art. 561. One who recovers, according to law, possession unjustly lost, shall be
deemed for all purposes which may redound to his benefit, to have enjoyed it without
interruption.
Note: Recovery according to law does not mean taking the law into one's own hands
BUT thru the proper writs & actions or w/ the aid of competent authorities
Note: Art. 561 applies to both possessors in good & in bad faith, but only if BENEFICIAL
to them
Title VI. - USUFRUCT
CHAPTER 1: USUFRUCT IN GENERAL
Art. 562. Usufruct gives a right to enjoy the property of another with the obligation of
preserving its form and substance, unless the title constituting it or the law otherwise
provides.
Usufruct
• the right to enjoy the property of another, w/ the obligation of preserving its
form & substance, unless the title constituting it or the law provides otherwise
• it is a “real right” of a temporary nature, w/c authorizes its holder to enjoy all
the benefits w/c result from the normal enjoyment/exploitation of another's
property, w/ obligation to return, at the designated time, either the same thing,
or in special cases, or its equivalent
 - 45 -
FULL OWNERSHIP = naked ownership + usufruct
NAKED OWNERSHIP = full ownership - usufruct USUFRUCT EASEMENT
USUFRUCT = full ownership – naked ownership Object may be real or personal property Involves only real property
What can be enjoyed are ALL uses & Easement is limited t a particular use
3 Fundamental Rights Appertaining to Ownership fruits of the property (e.g. right of way)
1. Jus dispodendi (right to dispose) Cannot be constituted on an easement; May be constituted in favour, or
2. Jus utendi (right to use) but it may be constituted on the land burdening, a piece of land held in
3. Jus fruendi (right to the fruits) burdened by an easement usufruct
Note: The combination of jus utendi & jus fruendi is called USUFRUCT. The remaining Usually extinguished by death of Not extinguished by the death of the
right (jus dispodendi) is really the essence of NAKED OWNERSHIP. usufructuary owner of the dominant estate

CHARACTERISTICS OR ELEMENTS OF USUFRUCT BASIS USUFRUCT LEASE

ESSENTIAL: A real right (whether registered in the As to EXTENT Covers ALL fruits & uses Generally covers only a particular or
- those w/o w/c it cannot be termed Registry or not) to enjoy another's property specific use
usufruct It is of temporary nature or duration (not As to NATURE Is always a REAL right GR: it is a PERSONAL right
perpetual otherwise it becomes emphyteusis) of the right Exceptions (when it is a real right):
Its purpose is to enjoy the benefits & derive - the lease is registered
all advantages from the object as a - the lease is for more than 1 year
consequence of NORMAL USE or As to the Can be created only by the The lessor may or may not be the
EXPLOITATION. CREATOR of owner, or by a duly owner (as when there is a sublease
NATURAL: The obligation of conserving or preserving the the right authorized agent, acting in or when the lessor is only a
- that w/c ordinarily is present, but a form & substance of the thing behalf of the owner usufructuary)
contrary stipulation can eliminate it As to ORIGIN May be created by law, GR: created only by CONTRACT
because it is not essential (abnormal contract, last will, or Exception:
or imperfect or irregular usufruct) prescription - by law, as in the case of an implied
ACCIDENTAL: Examples: new lease, or when a builder has
- those w/c may be present or - whether it be a pure or conditional usufruct built in good faith on the land of
absent depending upon the - the number of years it will exist another a building, is considerably
stipulation of the parties - whether it is in favor of 1 person or several worth more in value than the
building
Reasons for CONSERVING Form & Substance As to CAUSE The owner is more or less The owner or lessor is more or less
1. to prevent extraordinary exploitation PASSIVE, & he ALLOWS the ACTIVE & he MAKES the lessee enjoy
2. to prevent abuse, w/c is frequent usufructuary to enjoy the – hace gozar
3. to prevent impairment thing given in usufruct –
“deja gozar”
Object of Usufruct As to REPAIRS The usufructuary has the The lessee generally has no duty to
1. may be real or personal property duty to make the ordinary pay for repairs
2. may be sterile or productive/fruitful things repairs
3. may be created over a right, as long as it is not strictly personal or As to TAXES The usufructuary pays for The lessee generally pays no taxes
intransmissible, & as long as it has an independent existence the annual charges & taxes
on the fruits
Rights of Action Available to Usufructuary As to other A usufructuary may lease The lessee cannot constitute a
1. action to protect the usufruct itself things the property itself to usufruct on the property leased
2. action to protect the exercise of the usufruct another

Similarities between Usufruct & Servitudes
1. both are real rights, whether registered or not
2. both rights may be registered, provided that the usufruct involves real
property
3. both may ordinarily be alienated or transmitted in accordance w/ the
formalities set by law
Art. 563. Usufruct is constituted by law, by the will of private persons expressed in acts
inter vivos or in a last will and testament, and by prescription.
Art. 564. Usufruct may be constituted on the whole or a part of the fruits of the thing,
in favor of one more persons, simultaneously or successively, and in every case from or
to a certain day, purely or conditionally. It may also be constituted on a right, provided
it is not strictly personal or intransmissible.
 - 46 -
CLASSIFICATION OF USUFRUCT
Art. 566. The usufructuary shall be entitled to all the natural, industrial and civil fruits
As to ORIGIN Legal - created by law of the property in usufruct. With respect to hidden treasure which may be found on the
Voluntary/ - created by will of the parties inter vivos land or tenement, he shall be considered a stranger.
Conventional - created mortis causa: last will & testament
Mixed/ - created by law Fruits to which a Usufructuary is Entitled: natural, industrial & civil fruits that will
Prescriptive - created by act of a person accrue during the existence of the usufruct
As to As to fruits - Total: all the fruits are given
QUANTITY - Partial: not all fruits are given Dividend
or EXTENT As to object - Universal: if over the entire patrimony • income or civil fruits & should belong to the usufructuary & not to the
- Particular: if only individual things are included remainderman (naked owner)
As to the Simple - if only one usufructuary enjoy • dividends are declared out of the capital & are seriously prohibited by law
NUMBER of • stock dividends may be sold independently of the original shares
PERSONS Multiple - if several usufructuaries enjoy
enjoying ▪ Simultaneous: at the same time Products w/c Diminish Capital: cannot be considered fruits, unless a contrary intent
the right ▪ Successive: one after the other between the parties is clear
As to the Usufruct over The right must not be strictly personal or
QUALITY or Rights intransmissible in character. Hence, the right to Share of Usufructuary Re: Hidden Treasure
KIND of receive present or future support cannot be the • the usufructuary, not being the landowner, is not entitled as owner, but is
OBJECTS object of a usufruct. entitled as finder (to ½ of the treasure, as a rule, unless there is a contrary
Involved Usufruct over - Normal/Perfect/Regular: involves non-consumable agreement), if he really is the finder
Things things where the form & substance are preserved • if somebody else is the finder, the usufructuary gets nothing
- Abnormal/Imperfect/Irregular/Quasi Usufruct:
▪ involves consumable property (e.g. vinegar or Art. 567. Natural or industrial fruits growing at the time the usufruct begins, belong to
money) the usufructuary.
▪ non-consumable things that gradually deteriorate Those growing at the time the usufruct terminates, belong to the owner.
by use (e.g. furniture, automobile, sterile or In the preceding cases, the usufructuary, at the beginning of the usufruct, has no
unproductive animals) obligation to refund to the owner any expenses incurred; but the owner shall be obliged
As to Pure usufruct No term or condition to reimburse at the termination of the usufruct, from the proceeds of the growing
TERMS or w/ a term or - ex die: from a certain day fruits, the ordinary expenses of cultivation, for seed, and other similar expenses
CONDITIONS period - in diem: up to a certain day incurred by the usufructuary.
- ex die in diem: fr. a certain day up to a certain day The provisions of this article shall not prejudice the rights of third persons, acquired
w/ a condition Conditional either at the beginning or at the termination of the usufruct.
Fruits Pending at the Fruits Pending at the
Art. 565. The rights and obligations of the usufructuary shall be those provided in the BEGINNING of the Usufruct TERMINATION of the Usufruct
title constituting the usufruct; in default of such title, or in case it is deficient, the belong to the usufructuary belong to the owner
provisions contained in the two following Chapters shall be observed. no necessity of refunding owner must reimburse the usufructuary for ordinary
owner for expenses incurred cultivation expenses, from the proceeds of the fruits
Rules Governing a Usufruct rights of innocent 3rd parties should not be prejudiced
1. the agreement of the parties or the title giving the usufruct
2. in case of deficiency, apply the Civil Code
Art. 568. If the usufructuary has leased the lands or tenements given in usufruct, & the
Rule in Case of Conflict usufruct should expire before the termination of the lease, he or his heirs & successors
• in case of conflict bet. the rights granted a usufructuary by virtue of a will, & shall receive only the proportionate share of the rent that must be paid by the lessee.
codal provisions, the former, unless repugnant to the mandatory provisions of
Usufructuary
the Civil Code, should prevail.
• allowed to administer & manage the property, to collect rents & make the
Naked Ownership of an Ecclesiastical Body necessary repairs
• the naked ownership to a chaplaincy belongs to the proper ecclesiastical • has the right to select the tenant over the premises
authority w/in whose jurisdiction such properties are found

CHAPTER 2: RIGHTS OF THE USUFRUCTUARY

 - 47 -
GR: the lease executed by the usufructuary should terminate at the end of the usufruct RIGHTS W/ REFERENCE TO THE THING RIGHTS W/ REFERENCE TO THE
or earlier ITSELF IN ADDITION TO THE USUFRUCT USUFRUCTUARY RIGHT ITSELF
Exception: in the case of leases of rural lands, if the usufruct ends earlier than the 1. may personally enjoy the thing 1. may alienate (sell, donate,
lease, the lease continues for the remainder of the agricultural year - entitled to possession & fruits bequeath or devise) the
- the enjoyment may also be thru another usufructuary right
Art. 569. Civil fruits are deemed to accrue daily, and belong to the usufructuary in unless the contrary has been provided or - except a legal usufruct: the
proportion to the time the usufruct may last. stipulated usufruct w/c parents have over
Art. 570. Whenever a usufruct is constituted on the right to receive a rent or periodical 2. may lease the thing to another the properties of their
pension, whether in money or in fruits, or in the interest on bonds or securities payable - may be done even w/o owner's consent unemancipated children, because
to bearer, each payment due shall be considered as the proceeds or fruits of such right. - the least must not extend to a period said usufruct is to be used for
Whenever it consists in the enjoyment of benefits accruing from a participation in any longer than that of the usufruct, unless the certain obligations towards
industrial or commercial enterprise, the date of the distribution of which is not fixed, owner consents children
such benefits shall have the same character. - the lease ends at the time the usufruct 2. may pledge or mortgage the
In either case they shall be distributed as civil fruits, and shall be applied in the manner ends, except in the case of rural leases usufructuary right
prescribed in the preceding article. - if the lessee should damage the property, - BUT he cannot pledge or
the usufructuary shall answer to the owner mortgage the thing itself
Rule When Date of Distribution of Benefits Fixed - the relation bet. the owner & usufructuary - He cannot sell or alienate the
• Art. 570 applies whether or not the date of distribution is fixed does not end just because a lease has thing itself, or future crops, for
• The law doesn't mention anymore the case when the date is fixed because this been made crops pending at the termination
is the usual state of things, & rule under Art. 570 clearly applies - the usufructuary can demand of the usufruct belong to the
reimbursement from the lessee, cause of naked owner
Note: Stock dividends & cash dividends are civil fruits. Hence, the same rule should the latter's breach of the contract of lease - Parental usufruct cannot be
apply to profits of a partnership. - if the usufructuary cannot pay the damage alienated or pledged or
to the naked owner, his bond shall be mortgaged
Art. 571. The usufructuary shall have the right to enjoy any increase which the thing in liable.
usufruct may acquire through accession, the servitudes established in its favor, and, in
general, all the benefits inherent therein. Art. 573. Whenever the usufruct includes things which, without being consumed,
gradually deteriorate through wear and tear, the usufructuary shall have the right to
Increases in the Thing Held in Usufruct make use thereof in accordance with the purpose for which they are intended, and shall
1. accessions (artificial or natural) not be obliged to return them at the termination of the usufruct except in their
2. servitudes & easements condition at that time; but he shall be obliged to indemnify the owner for any
3. all benefits inherent in the property deterioration they may have suffered by reason of his fraud or negligence.

Reason: The Usufructuary is Entitled to: Abnormal/Imperfect Usufruct on Things that Deteriorate: It is true that ALL
1. ENTIRE jus fruendi things deteriorate, but there are some things that deteriorate much faster than others.
2. ENTIRE jus utendi
CAUSE EFFECT
Art. 572. The usufructuary may personally enjoy the thing in usufruct, lease it to If these fast deteriorating - the usufructuary is NOT responsible
another, or alienate his right of usufruct, even by a gratuitous title; but all the things deteriorate because - hence he can return them in the condition they might
contracts he may enter into as such usufructuary shall terminate upon the expiration of of NORMAL USE… be in at the termination of the usufruct
the usufruct, saving leases of rural lands, which shall be considered as subsisting - there is no necessity for him to make any repairs to
during the agricultural year. restore them to their former condition for they can be
preserved w/o the necessity of repairs
Note: The usufructuary is entitled not only to collect the rent or income, but also to - failure to return the thing will result in indemnification
lease the property in favour of another. This right also carries w/ it the right to select for the value the object may have at the end of the
and oust tenants for contractual violations. usufruct
If these fast deteriorating - even though there were no fault or negligence or fraud
things deteriorate because on the part of the usufructuary, he is still required to
of an EVENT or ACT that make necessary ordinary repairs
ENDANGERS THEIR - mere deterioration thru normal use does not require
PRESERVATION… ordinary repairs
 - 48 -
If these fast deteriorating - the usufructuary is responsible A: If it is impossible or too burdensome to replace them, the usufructuary has the
things deteriorate because - but such liability may be set off against improvements option to either:
of FRAUD (fraud a. use the trunks but should replace them
amounting to an evasion b. leave the dead, fallen or uprooted trunks at the owner's disposal & demand
of the obligation to that the latter remove them & clear the land
preserve) or
NEGLIGENCE If it is slightly burdensome to replace them, the usufructuary:
c. must replace them (w/n he uses the dead trunks)
Art. 574. Whenever the usufruct includes things which cannot be used without being d. cannot demand clearance of the land by the owner
consumed, the usufructuary shall have the right to make use of them under the
obligation of paying their appraised value at the termination of the usufruct, if they Art. 577. The usufructuary of woodland may enjoy all the benefits which it may
were appraised when delivered. In case they were not appraised, he shall have the produce according to its nature.
right to return at the same quantity and quality, or pay their current price at the time If the woodland is a copse or consists of timber for building, the usufructuary may do
the usufruct ceases. such ordinary cutting or felling as the owner was in the habit of doing, and in default of
this, he may do so in accordance with the custom of the place, as to the manner,
Rules for this Quasi-Usufruct amount and season.
1. the usufructuary (debtor-borrower) can use them (as if he is the owner, w/ In any case the felling or cutting of trees shall be made in such manner as not to
complete right of pledge or alienation) prejudice the preservation of the land.
2. BUT at the end of the usufruct, he must: In nurseries, the usufructuary may make the necessary thinnings in order that the
a. Pay the appraised value, if appraised when 1st delivered remaining trees may properly grow.
b. If there was no appraisal, return same kind, quality, & quantity OR With the exception of the provisions of the preceding paragraphs, the usufructuary
pay the price current at the termination of the usufruct cannot cut down trees unless it be to restore or improve some of the things in usufruct,
and in such case shall first inform the owner of the necessity for the work.
Art. 575. The usufructuary of fruit-bearing trees and shrubs may make use of the dead
trunks, and even of those cut off or uprooted by accident, under the obligation to A Special Usufruct over Woodland is not a Common/Frequent Usufruct
replace them with new plants. Because:
1. natural resources belong to the State
2. a license is generally essential if one desires to gather forest products
The Usufructuary can use the following:
1. dead trunks
2. those cut off or uprooted by accident Obligations of the Usufructuary
Note: but he must replace them w/ new plants 1. he must bear in mind that he is not the owner, & therefore, in the exercise of
the diligence in caring for the property, he must see to it that the woodland is
Special Usufructs preserved, either by development or by replanting, thus he cannot consume
1. usufruct on fruit-bearing trees & shrubs all, otherwise nothing would be left for the owner
2. of periodical pension, income, dividends 2. in the cutting or felling of trees, he must:
3. of woodland a. follow the owner's habit or practices
4. of right of action to recover real property, real right or movable property b. in default thereof, follow the customs of the place (as to the manner,
5. of part of property owned in common amount, and season) – all w/o prejudice to the owner, for while he
6. of the entire patrimony of a person can use, he cannot abuse
7. on a mortgaged immovable i. this rule is applicable if the woodland:
8. on a flock or herd of livestock - is a copse (thicket of small trees)
- or consists of timber for building
c. if there can be no customs, the only time the usufructuary can CUT
Art. 576. If in consequence of a calamity or extraordinary event, the trees or shrubs
DOWN trees will be for repair or improvements, but here the owner
shall have disappeared in such considerable number that it would not be possible or it
must 1st be informed
would be too burdensome to replace them, the usufructuary may leave the dead, fallen
3. cannot alienate the trees unless:
or uprooted trunks at the disposal of the owner, and demand that the latter remove
a. he is permitted, expressly or impliedly by the owner (as when the
them and clear the land.
purpose of the usufruct was really to sell the timber) or
b. he needs the money to do some repairs (but the owner must be
Q: A is a usufructuary of trees & shrubs belonging to B. As a result of an earthquake,
informed)
many of the trees & shrubs disappeared or were destroyed. What are A's rights and
obligations?
 - 49 -
WOODLAND COCONUT LAND a. remove the improvements if no substantial damage to the property in
The usufructuary can in certain cases cut down The usufruct extends merely to usufruct is caused
the trees because the way to enjoy the usufruct the fruits produced. b. set off (compensate) the improvements against damages for w/c he may
would be to convert the timber into lumber. be liable

Art. 578. The usufructuary of an action to recover real property or a real right, or any Registration of Improvements
movable property, has the right to bring the action and to oblige the owner thereof to • improvements made by a usufructuary belong to him, & may be registered,
give him the authority for this purpose and to furnish him whatever proof he may have. not independently, but in the registration proceedings of the land held in
If in consequence of the enforcement of the action he acquires the thing claimed, the usufruct
usufruct shall be limited to the fruits, the dominion remaining with the owner.
Purpose of Registration
Usufruct of an Action to Recover Through the Courts • to protect him against 3rd persons, for while he cannot obtain a refund
1. real property therefore he still may remove them or set them off against damages
2. personal property chargeable to him
3. real right over real or personal property • if the property is sold to an innocent purchaser for value, the right to remove
Note: in a sense, this is a usufruct over an expectancy or a hope. the useful improvement since not registered cannot be enforced against said
3rd person
What the Usufructuary can Demand from the Owner:
1. authority to bring the action (usually an SPA) Note: while a possessor in good faith is entitled to a refund for said useful
2. proofs needed for a recovery improvements, a usufructuary is not

How 3rd Parties Can be Prejudiced: the usufruct must either be registered or known
to them
Institution of the Action: the action may be instituted in the usufructuary's name,
for being the owner of the usufruct, he is property deemed a real party in interest
1. if the purpose is the recovery of the property or right, he is still required under
Art. 578 to obtain the naked owner's authority
2. if the purpose is to object or to prevent disturbance over the property, no
special authority from the naked owner is needed
Effect of Judgment: when judgment is awarded him & he gets the property:
1. its naked ownership belongs to the owner
2. its usufruct belongs to the him, the usufructuary
Note: this usufruct usually occurs when a universal usufruct has been given
Note: after successful suit, the usufruct is now over the thing acquired
Art. 579. The usufructuary may make on the property held in usufruct such useful
improvements or expenses for mere pleasure as he may deem proper, provided he
does not alter its form or substance; but he shall have no right to be indemnified
therefor. He may, however, remove such improvements, should it be possible to do so
without damage to the property.
Rights of the Usufructuary
1. to make useful improvements
2. to make luxurious improvements (for mere pleasure)
Limitations on the Rights
1. he must not alter the form or substance of the property held in usufruct
2. he is not entitled to a refund, but he may either:
Q: A usufructuary introduced useful improvements w/c he can remove w/o damage,
but he does not want to remove them. Can he be compelled by the naked owner to
make the removal?
A: NO, for the law says “may” & therefore he may or may not remove, the right being
potestative – dependent on his will.
Q: A usufructuary introduced useful improvements w/c he can remove w/o damage. Eh
wants to remove them, but the owner wants to retain them, & offers to reimburse him.
Who should prevail?
A: The usufructuary prevails for the right of removal granted him by the law. The rule
here is different from that in Arts. 546 and 548, where the right to remove may be
defeated by the right of the owner to retain, upon proper indemnification.
Art. 580. The usufructuary may set off the improvements he may have made on the
property against any damage to the same.
Rules re: Set Off of Improvements
1. damage > value of the improvements
a. usufructuary is still liable for the difference
2. value of improvements > damage
a. the difference does not go to the usufructuary, but accrues instead in
the absence of a contrary stipulation in favour of the naked owner,
otherwise, it is as if the usufructuary would be entitled to a partial
refund in cash
Requisites Before Set Off Can be Made
1. the damage must have been caused by the usufructuary
2. the improvements must have augmented the value of the property

Art. 581. The owner of property the usufruct of which is held by another, may alienate
it, but he cannot alter its form or substance, or do anything thereon which may be
prejudicial to the usufructuary.
Rights of the Naked Owner
1. to alienate the property, but he cannot:
a. alter its form or substance
b. do anything prejudicial to the usufructuary (as when he should
illegally lease the property to another, since this right ordinarily
pertains to the usufructuary
2. construct any works
3. make any improvements
4. make new plantings thereon if it be rural, but such acts must not cause:
a. a decrease in the value of the usufruct
b. prejudice the right of the usufructuary
When Buyer Must be Respect the Usufruct
• a purchaser of the property must respect the usufruct in case it is registered
or known to him, otherwise he can oust the usufructuary, who then can look
to the naked owner for damages
Rule in Case of Succession
• if the naked owner bequeathes (if personal property) or devises (if real
property) to another thru a will, the legatee or devisee should respect the
usufruct
Double Sale by Naked Owner
• GR: the naked owner is not allowed to sell the usufruct to anther after having
sold it 1st to the usufructuary, but if he does so, the rule on double sale applies
• If the 2nd buyer in GF registers the usufruct, he can oust the 1st buyer who did
not register, even though the latter be in possession
• The right of the 1st usufructuary is to proceed against the naked owner for
breach of the warranty against eviction
Art. 582. The usufructuary of a part of a thing held in common shall exercise all the
rights pertaining to the owner thereof with respect to the administration and the
collection of fruits or interest. Should the co-ownership cease by reason of the division
of the thing held in common, the usufruct of the part allotted to the co-owner shall
belong to the usufructuary.
Usufructuary of a Part of Common Property
• a co-owner may give the usufruct of his share to another, even w/o the
consent of the others, unless personal considerations are present
• the usufructuary in such a case takes the owner's place as to:
o administration/management
o collection of fruits or interests
Effect of Partition
1. the usufructuary continues to have the usufruct of the part allotted to the co-
owner concerned
- 50 -
2. if the co-owners make the partition w/o the intervention of the usufructuary,
this is all right, & the partition binds said usufructuary
CHAPTER 3: OBLIGATIONS OF THE USUFRUCTUARY
The Usufructuary has Obligations:
1. before the usufruct (e.g. the making of inventory)
2. during the usufruct (e.g. taking due care of property)
3. after the usufruct (e.g. duty to return & indemnify in the proper cases)
Art. 583. The usufructuary, before entering upon the enjoyment of the property, is
obliged:
(1) To make, after notice to the owner or his legitimate representative, an inventory of
all the property, which shall contain an appraisal of the movables and a description of
the condition of the immovables;
(2) To give security, binding himself to fulfil the obligations imposed upon him in
accordance with this Chapter.
Obligation Re: the Inventory & the Security
• they are not necessary before the right to the usufruct begins
• the are merely necessary before physical possession & enjoyment of the
property can be had
Effect of Failure to Make Inventory or Give Security
• the usufruct still begins, but he naked owner will have the rights granted him
under Art. 586
Requirements for the Making of the Inventory
1. the owner must be previously notified
a. purpose of notice: to enable him to correct errors in the inventory, if
he desires
2. the condition of the immovables must be described
3. the movables must be appraised, in view of easy deterioration or loss
4. no form is required except when there are real properties, Art. 1358 demands
a public instrument to affect 3rd parties
5. expenses are to be borne by the usufructuary, since the duty is his
When Inventory NOT Required
1. when no one will be injured thereby (e.g. usufruct over a periodical pension or
incorporeal right) provided the naked owner consents, for the law says “may”
2. in case of waiver by the naked owner or the law
3. when there is a stipulation in a will or contract
Purpose of Giving Security: to insure faithful compliance of the duties of the
usufructuary (whether required during or at end of the usufruct – e.g. the duty to
return)
Form of Security: any kind of sufficient security should be allowed, such as:
1. cash
2. personal bond
3. mortgage

When Security NOT Required
1. when no one will be injured thereby (no prejudice)
2. when there is a waiver by the naked owner
3. when there is a stipulation either in a will or contract
4. when the usufructuary is the donor the property (who has reserved the
usufruct)
5. when there is a parental usufruct – in case of parents who are usufructuaries
of their children's property, except when the parts contract a 2nd or
subsequent marriage, provided' that each child's property does not exceed
P50K in w/c case the parents have to file a bond not as usufructuary, but as
guardian or administrator
6. when there is caucion juratoria - w/c takes place of a bond, & is made by
taking an oath to fulfill properly the duties of a usufructuary (this is available
only under the conditions prescribed under Art. 587)
Art. 584. The provisions of No. 2 of the preceding article shall not apply to the donor
who has reserved the usufruct of the property donated, or to the parents who are
usufructuaries of their children's property, except when the parents contract a second
marriage.
Usufruct of Donor or of Parents
• the law says donor, not seller, for sale is an onerous contract
• while the law says “donor”, the word “remitter” can also be used, for
remission is gratuitous
• the formalities of donation or remission must be complied w/
• “2nd marriage” may be 3rd, 4th, etc, or any subsequent marriage
• In case of “remuneratory” (w/ future burden) donation, the parties may
stipulate on the necessity of the security
Art. 585. The usufructuary, whatever may be the title of the usufruct, may be excused
from the obligation of making an inventory or of giving security, when no one will be
injured thereby.
Effect if No One Will be Injured
• The usufructuary is not always excused, the exemption being dependent on
the naked owner.
• In case the naked owner refuses to make the exemption, appeal can be had
before the courts, and the judge should consider all the circumstances in
deciding w/n to give the grant.
• While ordinarily, it is the naked owner who grants the exemption, the grant
may be made by somebody else authorized by said naked owner.
Art. 586. Should the usufructuary fail to give security in the cases in which he is bound
to give it, the owner may demand that the immovables be placed under administration,
that the movables be sold, that the public bonds, instruments of credit payable to order
or to bearer be converted into registered certificates or deposited in a bank or public
institution, and that the capital or sums in cash and the proceeds of the sale of the
movable property be invested in safe securities.
The interest on the proceeds of the sale of the movables and that on public
securities and bonds, and the proceeds of the property placed under administration,
shall belong to the usufructuary.
- 51 -
Furthermore, the owner may, if he so prefers, until the usufructuary gives
security or is excused from so doing, retain in his possession the property in usufruct
as administrator, subject to the obligation to deliver to the usufructuary the net
proceeds thereof, after deducting the sums which may be agreed upon or judicially
allowed him for such administration.
EFFECTS OF FAILURE TO GIVE SECURITY (UNLESS EXEMPTED)
ON THE RIGHTS OF THE ON THE RIGHTS OF THE
NAKED OWNER USUFRUCTUARY
1. he may deliver the property to the 1. the usufructuary cannot possess the
usufructuary property till he gives the security
2. OR the naked owner may choose 2. the usufructuary cannot administer the
retention of the property as property, hence he cannot execute a lease
administrator thereon
3. OR the naked owner may demand 3. the usufructuary cannot collect credits that
receivership or administration by have matured, nor invest them unless the
another of the real property, sale of Court or the naked owner consents
movable, conversion or deposit of 4. but the usufructuary can alienate his right
credit instruments, or investment of to the usufruct; the grantee may of course
cash or profits possess the moment he gives security
Note: the receiver/ administrator s entitled to administration expenses
Retention of Property by Naked Owner
• although the owner may demand the sale of movables, still he may want to
retain some of them for their artistic worth or sentimental value, in w/c case
he may demand their delivery to him provided he gives security for the
payment of legal interest on their appraised value
Interest on Cash Proceeds of Sale
• if the movable be sold, the cash belongs to the naked owner, but the interest
thereon belongs to the usufructuary
Art. 587. If the usufructuary who has not given security claims, by virtue of a promise
under oath, the delivery of the furniture necessary for his use, and that he and his
family be allowed to live in a house included in the usufruct, the court may grant this
petition, after due consideration of the facts of the case.
The same rule shall be observed with respect to implements, tools and other
movable property necessary for an industry or vocation in which he is engaged.
If the owner does not wish that certain articles be sold because of their artistic worth or
because they have a sentimental value, he may demand their delivery to him upon his
giving security for the payment of the legal interest on their appraised value.
Caucion Juratoria
• the promise under oath
• a sworn duty to take good care of the property & return same at the end of
the usufruct
• it takes the place of the bond or security and is based on necessity &
humanity
 - 52 -
Requisites Before the Caucion Juratoria is Allowed Art. 591. If the usufruct be constituted on a flock or herd of livestock, the usufructuary
1. proper court petition shall be obliged to replace with the young thereof the animals that die each year from
2. necessity for delivery of furniture, implements or house included in the natural causes, or are lost due to the rapacity of beasts of prey.
usufruct If the animals on which the usufruct is constituted should all perish, without
3. approval of the court the fault of the usufructuary, on account of some contagious disease or any other
4. sworn promise uncommon event, the usufructuary shall fulfil his obligation by delivering to the owner
the remains which may have been saved from the misfortune.
Restriction on Usufructuary Should the herd or flock perish in part, also by accident and without the fault
• he cannot alienate or lease the property for this means he does not need them of the usufructuary, the usufruct shall continue on the part saved.
Should the usufruct be on sterile animals, it shall be considered, with respect
Rule in Case Usufructuary is Exempted from the Duty to Give Security to its effects, as though constituted on fungible things.
• Art. 487 does NOT apply when the usufructuary is exempted from giving
security. It applies only if he is required but cannot afford to give security. Note: this article applies only when the usufruct is on a FLOCK and HERD of livestock
(not 2 or 3 animals merely)
Art. 588. After the security has been given by the usufructuary, he shall have a right to
all the proceeds and benefits from the day on which, in accordance with the title RULES IN CASE OF FRUITFUL OR PRODUCTIVE LIVESTOCK
constituting the usufruct, he should have commenced to receive them. WHEN THERE IS WHEN THERE IS
OBLIGATION TO REPLACE NO OBLIGATION TO REPLACE
Note: Notice that once the bond is given, there is retroactivity. 1. if some animals die from natural 1. if there is a total loss of animals because some
causes unexpected or unnatural loss (e.g. some
Art. 589. The usufructuary shall take care of the things given in usufruct as a good 2. if some animals are lost due to contagious disease or any other uncommon
father of a family. rapacity of beasts of prey event, provided the usufructuary has no fault)
2. if there is a partial loss under the same
Duty of Usufructuary to Take Care of Property Notes: conditions
• Although care of a pater familias is required, still a usufruct is not extinguished - even though the cause be
by bad use fortuitous, there is the duty to Notes:
• Bad use, if owner suffers considerable injury, entitles him to demand its replace because such loss is - since there is no obligation to replace, it
administration w/o prejudice to the usufruct more or less expected & is follows that even if all should perish, the
• In the exercise of prudent care, the usufructuary is required to: natural remains (bones, carcass) must be delivered
1. make ordinary repairs - replacement should be made - the remains, not the remainder, must be
2. to notify the naked owner of urgency of extraordinary repairs & of any from the young produced given to the naked owner
acts w/c may prove detrimental to ownership - although the law says “each - in case of partial loss, the usufruct continues
year”, this doesn't necessarily on the remainder, provided that the loss be
3. answer for damages caused by the fault or negligence of his alienee,
grantee, agent, or lessee mean that the computation will by accident & w/o the fault of the
have to be done yearly usufructuary
Rule When Property has been Damaged
• damage to property caused by the fault or negligence of the usufructuary is Note: in case of sterile animals where there are no youngs, the rule of usufruct over
demandable right away fungibles applies
• the naked owner need not wait for the end of the usufruct before binging the
proper action for indemnity Art. 592. The usufructuary is obliged to make the ordinary repairs needed by the thing
given in usufruct.
Art. 590. A usufructuary who alienates or leases his right of usufruct shall answer for By ordinary repairs are understood such as are required by the wear and tear
any damage which the things in usufruct may suffer through the fault or negligence of due to the natural use of the thing and are indispensable for its preservation. Should
the person who substitutes him. the usufructuary fail to make them after demand by the owner, the latter may make
them at the expense of the usufructuary.
Liability of Usufructuary for Acts of the Substitute
• the usufructuary is made liable for the acts of the substitute Requisites for Usufructuary to be Responsible for Ordinary Repairs
• while the substitute answer to the usufructuary, the usufructuary answers to 1. they are required by normal or natural use
the naked owner 2. they are needed for preservation
• even when there is a sub-usufructuary, it is still the usufructuary who answers 3. they must have occurred during the usufruct
to the naked owner for ordinary repairs, taxes on the fruits, etc. 4. they must have happened w/ or w/o the fault of the usufructuary
 - 53 -
Q: Can the usufructuary exempt himself from the duty to make or pay for the Requisites Before Usufructuary is Allowed to Make Extraordinary Repairs
necessary repairs by renouncing the usufruct? 1. due notification to naked owner of urgency
A: If he had NO fault – yes, but he must surrender the fruits received. 2. the naked owner failed to make them
If he was at FAULT – no. he would still be liable for damages 3. the repair is needed for preservation

Remedy if Usufructuary does not make the Necessary Repairs
• the owner may make them, personally or thru another, at the expense of the
usufructuary
“Ordinary Repairs” – those required by the wear and tear due to the natural use of
the thing & are indispensable for its preservation
Right of Usufructuary who has made Extraordinary Repairs
1. get increase in value (plus value) OR get reimbursement for expenses (to
compute increase in value, get the difference bet. the value before and the
value after the repairs)
2. right of retention till paid (reimbursement is to be made only at the end of the
usufruct)

Art. 593. Extraordinary repairs shall be at the expense of the owner. The usufructuary
is obliged to notify the owner when the need for such repairs is urgent.
Art. 594. If the owner should make the extraordinary repairs, he shall have a right to
demand of the usufructuary the legal interest on the amount expended for the time
that the usufruct lasts.
Should he not make them when they are indispensable for the preservation of
the thing, the usufructuary may make them; but he shall have a right to demand of the
owner, at the termination of the usufruct, the increase in value which the immovable
may have acquired by reason of the repairs.
KINDS OF EXTRAORDINARY WHO SHOULD PAY?
REPAIRS
1. those caused by natural use, but The naked owner, w/n he is notified by the
not needed for preservation usufructuary
- the law does not require the naked owner to
make them, nor can he be compelled by the
usufructuary to make them
2. those caused by abnormal or The naked owner, w/n he is notified
exceptional circumstances & - he cannot again be compelled by the
needed for preservation usufructuary to make them
- but here, the usufructuary is allowed to make
them, w/ the right t get the increase in value
& the right of retention till paid at the
termination of the usufruct, provided that
there was no notification by the usufrucutary,
& failure to repair by the naked owner
3. those caused by abnormal or The naked owner, w/n he is notified
exceptional circumstance but - the usufructuary cannot compel the naked
are NOT needed for preservation owner to make them, nor is the usufructuary
allowed to make them, even if the naked
owner has failed to make them
- reason: there is no necessity for preservation
here
Note: if the naked owner makes the extraordinary repairs, he can demand from the
usufructuary the legal interest on the amount for the duration of the usufruct
Reason: the usufructuary has really benefited, otherwise the thing may not be properly
used
Art. 595. The owner may construct any works and make any improvements of which
the immovable in usufruct is susceptible, or make new plantings thereon if it be rural,
provided that such acts do not cause a diminution in the value of the usufruct or
prejudice the right of the usufructuary.
Although the Property is in the Possession of the Usufructuary, the Naked
Owner May Still:
1. construct works
2. make improvements
3. make new plantings, if rural
Conditions
1. the value of the usufruct is not diminished
2. the right of the usufructuary is not prejudiced
Effect of Increase in the Value of the Usufruct
1. the usufructuary profits by said increase, for he will still be entitled to the use
& fruits thereof
2. the usufructuary does not have to pay legal interest on the improvement
because this was a voluntary act of the naked owner
Art. 596. The payment of annual charges and taxes and of those considered as a lien
on the fruits, shall be at the expense of the usufructuary for all the time that the
usufruct lasts.
The Usufructuary Should Pay For
1. the annual charges on the fruits
2. the annual taxes on the fruits
3. the annual taxes on the land, including the real estate taxes
4. ordinary repairs
5. necessary cultivation expenses
Effect of Payment of the Annual Real Property Tax
• Just because the usufructuary pays for the annual land taxes, it doesn't
necessarily follow that he has adverse possession over the land, for after all, it
is he who must pay for said taxes
Note: a real property tax, being a burden upon the capital, should be paid by the owner
of the land, & not by the usufructuary

Art. 597. The taxes which, during the usufruct, may be imposed directly on the capital,
shall be at the expense of the owner.
If the latter has paid them, the usufructuary shall pay him the proper interest on the
sums which may have been paid in that character; and, if the said sums have been
advanced by the usufructuary, he shall recover the amount thereof at the termination
of the usufruct.
Note: the naked owner pays for taxes imposed directly the capital, provided they are
not annual
Rules:
1. if paid by naked owner, he can demand legal interest on the sum paid because
the usufructuary is enjoying the property
2. if advanced in the meantime by the usufructuary
a. he should be reimbursed the amount paid w/o legal interest
b. he is entitled to retention until paid
Note: reimbursement should be made, not immediately after advancing, but only the
TERMINATION of the usufruct, provided advance had been made voluntarily. If the
usufructuary had been forced to pay, reimbursement, w/ damages, should be made
immediately thereafter.
Art. 598. If the usufruct be constituted on the whole of a patrimony, and if at the time
of its constitution the owner has debts, the provisions of Articles 758 and 759 relating
to donations shall be applied, both with respect to the maintenance of the usufruct and
to the obligation of the usufructuary to pay such debts.
The same rule shall be applied in case the owner is obliged, at the time the usufruct is
constituted, to make periodical payments, even if there should be no known capital.
When Usufructuary has to Pay for the Debts of the Naked Owner
1. when there is no stipulation regarding the payment for debts – the donee shall
be responsible therefore only when the donation has been made in fraud of
creditors
a. the donation is always presumed to be in fraud of creditors, when at
the time thereof, the donor did not reserve sufficient property to pay
his debts prior to the donation
2. when the donation imposes upon the donee the obligations to pay the debts of
the donor – if the clause does not contain any declaration to the contrary, the
donee is understood to be liable to pay only the debts w/c appear to have
been previously contracted
a. in no case shall the donee be responsible for debts exceeding the
value of the property donated, unless a contrary intention clearly
appears
Applicability of Article
1. if the usufruct is a universal one (constituted on the whole of a patrimony)
2. and the naked owner
a. has debts
b. or is obliged to make periodical payments, whether or not there be
known capital
- 54 -
Note: Art. 598 particularly applies if a person donates everything but reserves to him
the usufruct thereof.
Art. 599. The usufructuary may claim any matured credits which form a part of the
usufruct if he has given or gives the proper security. If he has been excused from
giving security or has been able to give it, or if that given is not sufficient, he shall
need the authorization of the owner, or of the court in default thereof, to collect such
credits.
The usufructuary who has given security may use the capital he has collected in any
manner he may deem proper. The usufructuary who has not given security shall invest
the said capital at interest upon agreement with the owner; in default of such
agreement, with judicial authorization; and, in every case, with security sufficient to
preserve the integrity of the capital in usufruct.
Rules on Usufruct of a Matured Credit
1. if usufructuary has GIVEN SECURITY – collection & investment can be done
w/o the approval of the court or of the naked owner
2. if usufructuary has NOT given security, or when he is EXEMPTED, or when
there is only a CAUCION JURATORIA – collection & investment can be done
only w/ the approval of the court or of the naked owner
Note: if the credit is collected, same belongs to the naked owner, but the usufructuary
gets its usufruct
Note: the usufructuary shall be liable if the credit has matured is not collected because
of his fault or negligence
Art. 600. The usufructuary of a mortgaged immovable shall not be obliged to pay the
debt for the security of which the mortgage was constituted.
Should the immovable be attached or sold judicially for the payment of the debt, the
owner shall be liable to the usufructuary for whatever the latter may lose by reason
thereof.
How Liability of the Naked Owner may be Extinguished
1. by constituting a usufruct over an equivalent estate
2. by payment of a periodical pension equivalent to the loss
3. in any other similar way
Note: if no stipulation for payment by the usufructuary is made, & the usufruct was not
created to defraud creditors, the usufructuary has NO DUTY to pay off the debt
Note: although Art. 600 speaks only of a mortgaged immovable, it can also apply by
analogy, to a pledged movable, provided that the movable is in the usufructuary's
possession
Art. 601. The usufructuary shall be obliged to notify the owner of any act of a third
person, of which he may have knowledge, that may be prejudicial to the rights of
ownership, and he shall be liable should he not do so, for damages, as if they had been
caused through his own fault.
 - 55 -
When Notification by the Usufructuary is Required Resolutory Period property, the resolutory condition must be recorded to bind
1. if a 3rd party commits acts prejudicial to the rights of ownership 3rd persons
2. if urgent repairs are needed Merger of the - the usufruct is extinguished when the naked owner & the
3. if an inventory (at the beginning of the usufruct) is to be made Usufruct & usufructuary are one & the same person
Ownership in the
Effect of Notification Same Person
1. the usufructuary is liable for damages as if they had been caused thru his own - renunciation by the law refers to a voluntary surrender of the
fault rights of the usufructuary, made w/ the intent to so surrender
2. the usufructuary cannot even make the extraordinary repairs needed them
3. the inventory can go on, but the naked owner may later point out - renunciation must be made expressly
discrepancies & omissions in the inventory Renunciation or - if made expressly, the formalities of donation must be
Waiver by the complied w/
Art. 602. The expenses, costs and liabilities in suits brought with regard to the usufruct Usufructuary - renunciation is not mere abandonment, but an abandonment
shall be borne by the usufructuary. in favor of another
- if the renunciation is made gratuitously & in fraud of creditors,
Note: this article particularly applies only when the usufructuary has lost the case said creditors can rescind the renunciation, to the extent of
their credits
- total loss of the thing ends the usufruct, but not partial loss
CHAPTER 4: EXTINGUISHMENT OF USUFRUCT - when there is partial loss, the usufruct continues on the
Total Loss of the remaining part
Art. 603. Usufruct is extinguished: Thing in Usufruct - for total loss of a building (w/n the land is included in the
(1) By the death of the usufructuary, unless a contrary intention clearly appears; usufruct)
- for legal loss (e.g. expropriation)
(2) By the expiration of the period for which it was constituted, or by the fulfilment of
any resolutory condition provided in the title creating the usufruct; Termination of the - if the usufructuary has a sub-usufructuary, the sub-usufruct
(3) By merger of the usufruct and ownership in the same person; Right of the ends at the time the usufruct is extinguished, because by that
(4) By renunciation of the usufructuary; Person time, the right of the usufructuary to constitute the sub-
(5) By the total loss of the thing in usufruct; Constituting the usufruct has ended
(6) By the termination of the right of the person constituting the usufruct; Usufruct - if the sub-usufructuary dies ahead of the usufructuary, the
(7) By prescription. sub-usufruct ends, unless a contrary intention appears
- this refers to acquisitive prescription by a stranger either of
Prescription the usufruct or of the naked owner
HOW USUFRUCT IS EXTINGUISHED
- mere non-user by the usufructuary of the usufruct does not
GR: death of the usufructuary ends the usufruct terminate the usufruct, unless it is also a renunciation
Exceptions:
1. in the case of multiply usufructs – here it ends on the Other Causes for the Extinguishment of Usufruct
death of the last survivor 1. annulment
2. in case there is a period fixed on the number of years that 2. rescission
would elapse before a person would reach a certain age 3. mutual withdrawal
Death of the a. exception to the exception: the period was expressly 4. legal causes ending legal usufruct (e.g. when attainment of the age of
Usufructuary granted only in consideration of the existence of such majority extinguishes parental usufruct)
person, in w/c case it ends at the death of said person
3. in case the contrary intention clearly (expressly/impliedly)
Art. 604. If the thing given in usufruct should be lost only in part, the right shall
appears
continue on the remaining part.
Note: death of the naked owner does not extinguish the
Art. 605. Usufruct cannot be constituted in favor of a town, corporation, or association
usufruct for the rights of the naked owner are transmitted to
for more than fifty years. If it has been constituted, and before the expiration of such
his own heirs
period the town is abandoned, or the corporation or association is dissolved, the
- if the usufruct is on real property, or on a real right on real
usufruct shall be extinguished by reason thereof.
Expiration of the property, the period must be recorded to bind 3rd persons
Period - the term should not exceed 50 years if the usufructuary is a Note: this article is not applicable to trusts
juridical person. Premature abandonment or dissolution of the
juridical entity extinguishes the usufruct.
Fulfillment of the - if the usufruct is on real property, or on a real right on real

Usufruct in favour of Entities
• Sec. 11 of the Corporation Code: 50 years are allowed for the existence of a
private corporation
• In case of towns or municipal corporations, a period loner than 50 years may
militate against the public policy w/c prohibits the perpetual entailment of
property
Art. 606. A usufruct granted for the time that may elapse before a third person attains
a certain age, shall subsist for the number of years specified, even if the third person
should die before the period expires, unless such usufruct has been expressly granted
only in consideration of the existence of such person.
Art. 607. If the usufruct is constituted on immovable property of which a building forms
part, and the latter should be destroyed in any manner whatsoever, the usufructuary
shall have a right to make use of the land and the materials.
The same rule shall be applied if the usufruct is constituted on a building only and the
same should be destroyed. But in such a case, if the owner should wish to construct
another building, he shall have a right to occupy the land and to make use of the
materials, being obliged to pay to the usufructuary, during the continuance of the
usufruct, the interest upon the sum equivalent to the value of the land and of the
materials.
USUFRUCT ON BUILDING & LAND USUFRUCT ON THE
(but the building is destroyed in any BUILDING ALONE
manner whatsoever before the (but the building is destroyed before the
expiration of the period of the usufruct) termination of the period)
1. the usufruct on the building is ended, 1. the usufruct on the building ends, but he
but the usufruct on the land continues usufructuary can still make use of
2. the usufruct is still entitled to the use whatever materials of the house remain
of the land & the use of whatever 2. the usufructuary is entitled to the use of
materials of the house remains the land because although there was no
3. if the naked owner wants to rebuild usufruct on the land, still it cannot be
but the usufructuary refuses, it is the denied that in using the building before
usufructuary who prevails for the use he was also automatically using the land
of the land is still his for the 3. but precisely because there was no
remainder period usufruct on the land, the naked owner
has preferential right to its use
There should be Interest:
1. on the materials – because the usufruct was on the building, including its
materials
2. on the land – because although there was no usufruct on the land, still use of
the building necessitated automatic use of the land
Art. 608. If the usufructuary shares with the owner the insurance of the tenement
given in usufruct, the former shall, in case of loss, continue in the enjoyment of the
new building, should one be constructed, or shall receive the interest on the insurance
indemnity if the owner does not wish to rebuild.
Should the usufructuary have refused to contribute to the insurance, the owner
insuring the tenement alone, the latter shall receive the full amount of the insurance
indemnity in case of loss, saving always the right granted to the usufructuary in the
preceding article.
- 56 -
Proportion in the Contribution or Sharing
• the law does not say, in the case of sharing, in what proportion each must
contribute
• a better solution would be to make the sharing of the premium proportionate
to the respective insurable interests, the premium of the naked owner being
based on the insurable interest of the naked ownership; that of the
usufructuary being based on the usufructuary being based on the insurable
interest of the usufruct
Rules
1. If the naked owner & the usufructuary share it he premiums and the property
is destroyed
a. If the owner constructs new building or rebuilds, the usufruct
continues on the new building
i. If the cost of the new building is less than the insurance
indemnity, the usufructuary should get legal interests on the
difference (the amount not invested)
ii. If the cost is more than the insurance indemnity, the
usufructuary enjoys the new building completely, w/ no
obligation to give interest on the additional cost to the naked
owner
b. If the owner does not construct a new building or rebuild, the naked
owner gets the insurance indemnity but should pay the interest/fruits
thereon to the usufructuary
2. if the naked owner alone pays for the insurance and the usufructuary has
refunded to share and the property is destroyed
a. the naked owner gets the whole indemnity w/ no obligation to give
the interest thereon to the usufructuary
b. if the usufruct was on the building & the land, the usufruct continues
on the land & the materials. The naked owner has no right to rebuild
over the opposition of the usufructuary.
c. if usufruct was on the building alone, the naked owner may build w/
or w/o the approval of the usufructuary, but he must pay interest on
the value of the land & the old materials that may have been used
3. if the naked owner alone paid for the insurance but there is failure or omission
of usufructuary to share
a. the effect is the same as if there was a sharing, but the usufructuary
must reimburse the naked owner his (the usufructuary's) share of the
insurance premium
4. if the usufructuary alone pays the insurance premium
a. a usufructuary all by himself has some sort of insurable interest on
the property, more particularly, on the usufruct thereof
b. the measure of an insurable interest in property is the extent to w/c
the insured might be damnified/prejudiced by loss/injury thereof
Summary of Rules
1. the insurance indemnity goes to the usufructuary alone w/ no obligation on his
part to share the indemnity w/, nor to give legal interest thereon to the naked
owner
2. the usufruct no doubt continues on the land for the remaining period of the
usufruct, unless the usufruct has been constituted on the building alone
3. the usufruct has no obligation to construct a new building or to rebuild
 - 57 -

Note: a contrary stipulation between the parties will prevail RULES IN CASE OF A MULTIPLE USUFRUCT
IF CONSTITUTED IF CONSTITUTED
Art. 609. Should the thing in usufruct be expropriated for public use, the owner shall be SIMULTANEOUSLY SUCCESSIVELY
obliged either to replace it with another thing of the same value and of similar - all the usufructuaries must be - if the successive usufructs were constituted by
conditions, or to pay the usufructuary the legal interest on the amount of the indemnity alive (or at least conceived) at virtue of DONATION, all the donees-
for the whole period of the usufruct. If the owner chooses the latter alternative, he the time of constitution usufructuaries must be living at the time of the
shall give security for the payment of the interest. - it is the death of the last constitution-donation of the usufruct
survivor w/c, among other - if the successive usufructs were constituted by
RULES IN CASE OF EXPROPRIATION causes, terminates the usufruct virtue of a last WILL, there should be 2
1. he may replace w/ equivalent thing, or successive usufructuaries, & both must have
If NAKED OWNER alone 2. he may pay to the usufructuary legal interest on been alive (or at least conceived) at the time of
was given indemnity the indemnity the testator's death
- this requires security given by the naked owner
for the payment of the interest Art. 612. Upon the termination of the usufruct, the thing in usufruct shall be delivered
If BOTH the naked owner & Each owns the indemnity given to him, the usufruct to the owner, without prejudice to the right of retention pertaining to the usufructuary
the usufructuary were being totally extinguished or his heirs for taxes and extraordinary expenses which should be reimbursed. After
separately given indemnity the delivery has been made, the security or mortgage shall be cancelled.
1. he must give to the naked owner & compel the
latter to return either the interest OR to replace RIGHTS & OBLIGATIONS AT THE TERMINATION OF THE USUFRUCT
the property ON THE PART OF THE ON THE PART OF THE
If USUFRUCTUARY alone 2. he may deduct the interest himself, if the naked USUFRUCTUARY NAKED OWNER
was given indemnity owner fails to object Obligations: Obligations:
1. must return the property to the naked owner 1. must cancel the security or
Note: he is entitled only to legal interest (fruits) on mortgage, provided the
the indemnity if no replacement is made. Rights: usufructuary has complied w/ all
1. to retain the property till he is reimbursed for his obligations
Art. 610. A usufruct is not extinguished by bad use of the thing in usufruct; but if the taxes on the capital (w/c had been advanced 2. must in case of rural lease, respect
abuse should cause considerable injury to the owner, the latter may demand that the by him) and indispensable extraordinary leases made by the usufructuary,
thing be delivered to him, binding himself to pay annually to the usufructuary the net repairs or expenses (insofar as there has till the end of the agricultural year
proceeds of the same, after deducting the expenses and the compensation which may been an increase in the value) 3. make reimbursements to the
be allowed him for its administration. 2. to remove removable improvements or set usufructuary in the proper cases
them off against damages he has cause (the
EFFECT OF BAD USE OF THE PROPERTY HELD IN USUFRUCT removal may be done either during or after
Bad use w/c does NOT cause Bad use w/c CAUSES considerable the usufruct)
considerable injury to the naked owner injury to the naked owner
- usufruct continues - usufruct continues Note: the term “landholder” includes a lessee, a usufructuary, or a legal possessor of
- naked owner CANNOT demand - naked owner CAN demand delivery to & the land
administration by himself administration by him
- but he will be obliged to pay net
proceeds to usufructuary
- the naked owner gets administration
fee & administration expenses

Note: the court will determine w/n there is considerable injury to the naked owner

Art. 611. A usufruct constituted in favor of several persons living at the time of its
constitution shall not be extinguished until death of the last survivor.
 - 58 -

TITLE VIII — NUISANCE Examples of Nuisances

1. injures/endangers the health or safety of others
2. annoys or offends the senses
Art. 694. A nuisance is any act, omission, establishment, business, condition of
3. shocks, defies, or disregards decency or morality
property, or anything else which:
(1) Injures or endangers the health or safety of others; or 4. obstructs/interferes w/ the free passage of any public highway or street or any
(2) Annoys or offends the senses; or body of water
(3) Shocks, defies or disregards decency or morality; or 5. hinders/impairs the use of property
(4) Obstructs or interferes with the free passage of any public highway or street, or any
Attractive Nuisance: a dangerous instrumentality or appliance w/c is likely to attract
body of water; or
children at play
(5) Hinders or impairs the use of property.

Nuisance The Attractive Nuisance Doctrine: one who maintains on his estate or premises an
• One of the most serious hindrances to the enjoyment of life & property attractive nuisance w/o exercising due care to prevent children from playing therewith
• Anything that worketh hurt, inconvenience, or damage or resorting thereto is liable to a child of tender years who is injured thereby, even if
the child is technically a trespasser in the premises.
Aspects of Nuisance
1. the harm caused Attractive Nuisance: Basis for Liability: the attractiveness is an invitation to
2. that w/c causes the harm children. Safeguards to prevent danger must therefore be set up.

Negligence Nuisance Art. 696. Every successive owner or possessor of property who fails or refuses to abate
Penalized because of lack Nuisance is wrong not because of the presence/absence a nuisance in that property started by a former owner or possessor is liable therefor in
of proper care of care, but because of the injury caused the same manner as the one who created it.

Trespass Nuisance When successor to the property may be held liable: he must knowingly fail or
refuse to abate the nuisance
There is entry into another's property; The injury is only consequential
the injury is direct & immediate Liability of 2 or more persons responsible for a nuisance: if there was a common
design or interest, the liability is solidary
Art. 695. Nuisance is either public or private. A public nuisance affects a community or
neighborhood or any considerable number of persons, although the extent of the Rule if Lessor Created/Continues the Nuisance
annoyance, danger or damage upon individuals may be unequal. A private nuisance is • Lessor - If a person sets up a nuisance on his land, then leases the property
one that is not included in the foregoing definition. to another, he cannot escape liability. Continuation of the nuisance after the
lease becomes effective makes the lessor liable.
CLASSIFICATION OF NUISANCES • Lessee - liable only when he knowingly allows its existence
Old Nuisance per se Always a nuisance
classification Nuisance per accidens A nuisance only because of the Art. 697. The abatement of a nuisance does not preclude the right of any person
location or other circumstances injured to recover damages for its past existence.
According to relief Actionable
Non-actionable Cumulative Remedies
Those abatable by criminal & • the remedies of abatement & damages may both be demanded
New civil actions
classification According to manner of relief Those abatable only by civil Art. 698. Lapse of time cannot legalize any nuisance, whether public or private.
actions
Those abatable judicially GR: the action to abate a public/private nuisance is not extinguished by prescription
Those abatable extrajudicially Exception: easements w/c are extinguished by obstruction & non-user for 10 years
Public (common) – affects a e.g. a noisy dangerous factory
According to community/neighborhood or any in a residential district Art. 699. The remedies against a public nuisance are:
the Civil considerable number of persons (1) A prosecution under the Penal Code or any local ordinance: or
Code e.g. an illegally constructed (2) A civil action; or
Private – that w/c is not public dam partially resting on (3) Abatement, without judicial proceedings.
another estate
 - 59 -

Art. 700. The district health officer shall take care that one or all of the remedies
against a public nuisance are availed of.
City Engineer: the proper officer in determining w/c remedy is the best insofar a
illegal constructions or houses on public streets are concerned
Note: in other places, it is the District Health Officer
the procedure for extrajudicial abatement of a public nuisance by a private person be
followed.
Art. 707. A private person or a public official extrajudicially abating a nuisance shall be
liable for damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared by the courts to be not a real nuisance.

Effect if the District Health Officer is Not Consulted Prior to the Abatement Title VII. - EASEMENTS OF SERVITUDES
• the person doing the abating are not necessarily liable
• they would be liable for damages only if the abatement is carried out w/ CHAPTER 1: EASEMENTS IN GENERAL
unnecessary injury, or if the alleged nuisance is later declared by the courts
not to be a real nuisance Easement: an encumbrance imposed upon an immovable for the benefit of a
community or 1 or more persons (persona easement) or for the benefit of anther
Art. 701. If a civil action is brought by reason of the maintenance of a public nuisance, immovable belonging to a different owner (real or predial easement)
such action shall be commenced by the city or municipal mayor.
Art. 702. The district health officer shall determine whether or not abatement, without EASEMENT SERVITUDE
judicial proceedings, is the best remedy against a public nuisance. The name used in common law countries The name used in civil law countries
Art. 703. A private person may file an action on account of a public nuisance, if it is Only one from of servitude A broader term
specially injurious to himself. Always a predial or real Refers to a predial or real easement upon
the one hand, or to a personal easement
GR: it is the mayor who must bring the civil action to abate a public nuisance upon the other hand
Exception: a private individual can also do so if the public nuisance is specially
injurious to himself EASEMENT LEASE
Always a real right (whether the A real right only when it is registered or
Nature of the Action
easement be real or personal) when the lease of real property exceeds
1. injunction 1 year
2. abatement
There is a rightful limited use w/o There is a rightful & limited use &
3. damages
ownership or possession possession w/o ownership
Can refer only to immovables May involved real or personal property
Art. 704. Any private person may abate a public nuisance which is specially injurious to
him by removing, or if necessary, by destroying the thing which constitutes the same, Note: acknowledgement of easement is an admission that the property belongs to
w/o committing a breach of the peace, or doing unnecessary injury. But it is necessary: another
(1) That demand be first made upon the owner or possessor of the property to abate
the nuisance;
SECTION 1. - Different Kinds of Easements
(2) That such demand has been rejected;
(3) That the abatement be approved by the district health officer and executed with the
assistance of the local police; and Art. 613. An easement or servitude is an encumbrance imposed upon an immovable
(4) That the value of the destruction does not exceed three thousand pesos. for the benefit of another immovable belonging to a different owner.
Art. 705. The remedies against a private nuisance are: The immovable in favor of which the easement is established is called the dominant
(1) A civil action; or estate; that which is subject thereto, the servient estate.
(2) Abatement, without judicial proceedings.
Note: where the easement may be established on any of several tenements
Defenses surrounding the dominant estate, the one where the way is shortest & will cause the
1. estoppel, public necessity least damage should be chosen. However, if these 2 circumstances do not concur in a
2. non-existence of the nuisance single tenement, the way w/c will cause the least damages should be used, even if it
3. impossibility of abatement will not be the shortest.

Art. 614. Servitudes may also be established for the benefit of a community, or of one
or more persons to whom the encumbered estate does not belong.
 - 60 -
PERSONAL EASEMENT USUFRUCT CLASSIFICATION OF EASEMENTS
Cannot be alienated Generally can be alienated REAL/PREDIAL: for the benefit of another immovable
The use is specifically designated The use has a broader scope, and in general As to a party given belonging to a diff. owner
comprehends all the possible uses of the thing BENEFIT PERSONAL: for the benefit of 1 or more persons or of a
community
Characteristics of Easement CONTINUOUS: their use is incessant, or may be incessant,
1. a real right – hence an action in rem is possible against the possessor of the As to manner of w/o the intervention of any act of man
servient estate EXERCISE DISCONTINUOUS: they are used at intervals & depend
2. imposable only on another's property upon the acts of man
3. it is a jus in re aliena – a real right that may be alienated although the naked APPARENT: those made known & continually kept in view
ownership is maintained As to w/n by externals signs that reveal the use & enjoyment of the
4. it is a limitation/encumbrance on the servient estate for another's benefit EXISTENCE is same
a. it is essential that there be benefit otherwise there would be no INDICATED NON-APPARENT: they show no external indication of their
easement existence
b. it is not essential that the benefit be exercised. What is vital is that it POSITIVE: here, the owner of the servient estate is
can be exercised obliged:
c. the benefit should not be so great as to completely absorb/impair the As to the - to allow something to be done on his property, or
usefulness of the servient estate, for then, this would not be merely PURPOSE of the - to do it himself
an encumbrance or a limitation but a cancellation of the rights of the easement or the note: they are also termed “servitudes of sufferance or
servient estate NATURE of the intrusion or service” because something is being done on the
d. the benefit or utility goes to the dominant estate, not necessarily to LIMITATION servient estate
the owner of the dominant estate NEGATIVE: here the owner of the servient estate is
e. there is limited use but there is no possession prohibited to do something w/c he could lawfully do were it
f. the exercise is naturally restricted by the needs of the dominant not for the existence of the easement
estate or of its owner right to partially use the servient estate
g. easements, being an abnormal restriction on ownership, are not right to get specific materials or objects from the servient
presumed, but may be imposed by law As to the estate
5. there is inheritance/inseparability, from the estate to w/c it belongs RIGHT GIVEN Right to participate in ownership
6. it is indivisible – even if the tenement be divided
Right to impede or prevent the neighboring estate from
7. it is intransmissible – unless the tenement affected be also transmitted or
performing a specific act of ownership
alienated
VOLUNTARY: constituted by will or agreement of the
8. it is perpetual as – as long as the dominant and/or the servient estate exists parties or by a testator
unless sooner extinguished by the causes enumerated by law
As to LEGAL: those constituted by law for public use or private
SOURCE/ORIGIN interest
Note: there can be no easement imposed on personal property; only immovables my
MIXED: created partly by agreement & partly by the law
be burdened w/ easements

Art. 615. Easements may be continuous or discontinuous, apparent or nonapparent.
Continuous easements are those the use of which is or may be incessant, without the
intervention of any act of man.
Discontinuous easements are those which are used at intervals and depend upon the
acts of man.
Apparent easements are those which are made known and are continually kept in view
by external signs that reveal the use and enjoyment of the same.
Nonapparent easements are those which show no external indication of their existence.
Art. 616. Easements are also positive or negative.
A positive easement is one which imposes upon the owner of the servient estate the
obligation of allowing something to be done or of doing it himself, and a negative
easement, that which prohibits the owner of the servient estate from doing something
which he could lawfully do if the easement did not exist.
Art. 617. Easements are inseparable from the estate to which they actively or passively
belong.
“Inseparable”
• indicates that independently of the immovable to w/c they are attached,
easements do not exist
Consequences of Inseparability
• easements cannot be sold or donated or mortgaged independently of the real
property to w/c they may be attached – this means that when an easement is
granted, such easement refers to a particular parcel of land
• registration of the dominant estate under the Torrens system w/o the
registration of the voluntary easements in its favour, does not extinguish the
easements; but registration of the servient estate extinguishes said voluntary
easements

Provisions of the Land Registration Law
• easements shall continue to subsist & shall be held to pass w/ the title of
ownership until rescinded or extinguished by virtue of the registration of the
servient estate
GR: the registration of the servient estate w/o the registration of the voluntary
easement presumably extinguishes the easement
Exceptions (when there is no extinguishment of said easement):
1. the grantee or transferee of the servient estate actually knew of the existence
of the unrecorded easement
2. there is an understanding or stipulation that the easement would continue to
exist
Art. 618. Easements are indivisible. If the servient estate is divided between two or
more persons, the easement is not modified, and each of them must bear it on the part
which corresponds to him.
If it is the dominant estate that is divided between two or more persons, each of them
may use the easement in its entirety, without changing the place of its use, or making
it more burdensome in any other way.
Indivisibility of Easements
• partition/division of an estate does not divide the easement, w/c continues to
be complete in that each of the dominant estates can exercise the whole
easement over each of the servient estates, but only on the part
corresponding to each of them
Art. 619. Easements are established either by law or by the will of the owners. The
former are called legal and the latter voluntary easements.
Judicial Declaration that an Easement Exists
• when the court says that an easement exists, it is not creating one, it merely
declares the existence of an easement created either by law or by the parties
or testator
SECTION 2. - Modes of Acquiring Easements
Art. 620. Continuous and apparent easements are acquired either by virtue of a title or
by prescription of ten years.
HOW EASEMENTS ARE ACQUIRED
BY TITLE & If continuous & apparent
PRESCRIPTION
If continuous & non-apparent (because they are NOT
BY TITLE PUBLIC)
ONLY If discontinuous & apparent (because the possession is
UNINTERRUPTED)
If discontinuous & non-apparent
Title: a juridical act or law sufficient to create the encumbrance
- 61 -
Note: intestate succession does not create an easement, for no act is involved. Hence,
instead of creating an easement, it transmits merely an easement already existing.
Art. 621. In order to acquire by prescription the easements referred to in the preceding
article, the time of possession shall be computed thus: in positive easements, from the
day on which the owner of the dominant estate, or the person who may have made use
of the easement, commenced to exercise it upon the servient estate; and in negative
easements, from the day on which the owner of the dominant estate forbade, by an
instrument acknowledged before a notary public, the owner of the servient estate, from
executing an act which would be lawful without the easement.
if the easement is POSITIVE – begin counting the period from the day the dominant
estate began to exercise it
if the easement is NEGATIVE – begin counting from the time NOTARIAL
PROHIBITION was made on the SERVIENT ESTATE
Q: who makes the notarial prohibition or who should commence the exercise of the
easement?
A: the dominant estate, thru its owner or usufructuary or possessor or legal
representative; in other words, any one who desires to establish the easement.
Q: is the easement of light & view positive or negative?
• if made on one's own wall & the wall does not extend over the neighbor's land,
the easement is NEGATIVE
• if made on one's own wall w/c extends over the neighboring land, or if made
on a party wall, the easement is created because of an act of sufferance or
allowance, thus the easement is POSITIVE
Q: may the easement of right of way be acquired by prescription?
A: no, because it is discontinuous or intermittent. The limitation on the servient
owner's rights of ownership exists only when the dominant owner actually crosses or
passes over the servient estate. Since the dominant owner cannot be continually
crossing the servient estate, but can do so only at intervals, the easement is
necessarily of a discontinuous nature
Art. 622. Continuous nonapparent easements, and discontinuous ones, whether
apparent or not, may be acquired only by virtue of a title.
Requisites of Prescription
1. concept of owner
2. public
3. peaceful
4. uninterrupted
Art. 623. The absence of a document or proof showing the origin of an easement which
cannot be acquired by prescription may be cured by a deed of recognition by the owner
of the servient estate or by a final judgment.
Applicability of Article
1. continuous non-apparent
2. discontinuous easements

Proof of Easements may be:
1. by deed of recognition by the SERVIENT owner
2. final judgment
Art. 624. The existence of an apparent sign of easement between two estates,
established or maintained by the owner of both, shall be considered, should either of
them be alienated, as a title in order that the easement may continue actively and
passively, unless, at the time the ownership of the two estates is divided, the contrary
should be provided in the title of conveyance of either of them, or the sign aforesaid
should be removed before the execution of the deed. This provision shall also apply in
case of the division of a thing owned in common by two or more persons.
Apparent Signs of an Easement that Apparently Exists
1. originally no true easement exists here because there is only 1 owner
2. the article speaks of apparent visible easements
3. sign of the easement does not mean a placard or sign post, but an outward
indication that the easement exists
4. it is not essential that there be an apparent sign bet. the 2 estates; is
important that the easement exists bet. the 2 estates
Rules:
1. before the alienation, there is no true easement
2. after alienation:
a. there arises an easement IF the sign continues to remain unless
there is a contrary agreement (the continuance of the sign is the
title)
b. there is no easement if the sign is removed or if there is an
agreement to this effect
Applicability of the Article
1. whether only 1 or both estates are alienated
2. even if there be only 1 estate but there are 2 portions thereof, as long as later
on there is a division of the ownership of the said portion
3. even in the case of division of common property, though this is not an
alienation
When Article does not Apply
• in case both estates or both portions are alienated to the same owner, for
then there would be no true easement unless there is a further alienation, this
time, to different owners
Art. 625. Upon the establishment of an easement, all the rights necessary for its use
are considered granted.
Grant of Necessary Rights for the Use of the Easement
• unless the necessary rights are also granted, the right to the easement itself is
rendered nugatory
• necessary rights include repair, maintenance, accessory easements such as
the right of way if the easement is for the drawing of water
• termination of the principal easement necessarily ends all the secondary or
accessory easements
- 62 -
Requisite to Affect/Prejudice 3rd persons: voluntary easements must be
registered; this is not generally essential for legal easements since this exists as a
matter of law & necessity
Art. 626. The owner of the dominant estate cannot use the easement except for the
benefit of the immovable originally contemplated. Neither can he exercise the
easement in any other manner than that previously established.
Easements Appurtenant & Easements in Gross
• easements w/ a dominant estate are called easements appurtenant, w/o the
dominant estate, they are purely personal, and may thus be referred to as
easements in gross
• a personal easement or an easement in gross, precisely because it is an
easement, is still real property, not personal property
SECTION 3. - Rights and Obligations of the Owners of the Dominant and
Servient Estates
Art. 627. The owner of the dominant estate may make, at his own expense, on the
servient state any works necessary for the use and preservation of the servitude, but
without altering it or rendering it more burdensome.
For this purpose he shall notify the owner of the servient estate, and shall choose the
most convenient time and manner so as to cause the least inconvenience to the owner
of the servient estate.
Art. 628. Should there be several dominant estates, the owners of all of them shall be
obliged to contribute to the expenses referred to in the preceding article, in proportion
to the benefits which each may derive from the work. Any one who does not wish to
contribute may exempt himself by renouncing the easement for the benefit of the
others.
If the owner of the servient estate should make use of the easement in any manner
whatsoever, he shall also be obliged to contribute to the expenses in the proportion
stated, saving an agreement to the contrary.
Art. 629. The owner of the servient estate cannot impair, in any manner whatsoever,
the use of the servitude.
Nevertheless, if by reason of the place originally assigned, or of the manner established
for the use of the easement, the same should become very inconvenient to the owner
of the servient estate, or should prevent him from making any important works, repairs
or improvements thereon, it may be changed at his expense, provided he offers
another place or manner equally convenient and in such a way that no injury is caused
thereby to the owner of the dominant estate or to those who may have a right to the
use of the easement.
Art. 630. The owner of the servient estate retains the ownership of the portion on
which the easement is established, and may use the same in such a manner as not to
affect the exercise of the easement.
 - 63 -
(3) When either or both of the estates fall into such condition that the easement cannot
be used; but it shall revive if the subsequent condition of the estates or either of them
should again permit its use, unless when the use becomes possible, sufficient time for
prescription has elapsed, in accordance with the provisions of the preceding number;
(4) By the expiration of the term or the fulfilment of the condition, if the easement is
temporary or conditional;
(5) By the renunciation of the owner of the dominant estate;
(6) By the redemption agreed upon between the owners of the dominant and servient
estates.

Other Causes for Extinguishment of Easement

1. expropriation of the servient estate
2. permanent impossibility to make use of the easement
3. annulment, rescission, or cancellation of the title that constituted the
easement
4. abandonment of the servient estate
5. resolution of the right of the grantor to create the easement
6. registration of the servient estate as FREE, that is, although the servient
estate was registered under the Torrens System, the easement thereon was
not registered, unless there is a stipulation or actual knowledge of the
existence of the easement on the part of the transferee
7. in case of the legal easement of right of way, the opening of an adequate
outlet to the highway extinguishes the easement, if the servient owner makes
a demand for such extinguishment

Art. 632. The form or manner of using the easement may prescribe as the easement
itself, and in the same way.

PRESCRIPTION RE: PRESCRIPTION RE:

VOLUNTARY EASEMENTS LEGAL EASEMENTS
- the easement itself may - some legal easements do not prescribe (e.g.
prescribe servitude of national drainage)
- the form or manner of using - the right to exercise them cannot also prescribe
may also prescribe in the same - the manner & form of using them may prescribe
manner as the easement itself

Art. 633. If the dominant estate belongs to several persons in common, the use of the
easement by any one of them prevents prescription with respect to the others.

Note: the use benefits the other co-owners, hence there will be no prescription even w
respect to their own shares.
SECTION 4. - Modes of Extinguishment of Easements
CHAPTER 2: LEGAL EASEMENTS

Art. 631. Easements are extinguished:

(1) By merger in the same person of the ownership of the dominant and servient SECTION 1. - General Provisions
estates;
(2) By nonuser for ten years; with respect to discontinuous easements, this period shall Art. 634. Easements imposed by law have for their object either public use or the
be computed from the day on which they ceased to be used; and, with respect to interest of private persons.
continuous easements, from the day on which an act contrary to the same took place;
 - 64 -

Legal Easements: easements imposed by law, and w/c have for their object either: DUTIES OF SERVIENT ESTATE DUTIES OF DOMINANT ESTATE
1. public use 1. the owner cannot construct works that 1. he cannot make works w/c will increase
2. interest of private persons would impede the easement the burden
2. nor can he enclose his land by ditches 2. but he may construct works preventing
The Different Legal Easements or fences w/c would impede the flow erosion
1. the easements relating to water 3. should he really construct an 3. if the descending waters are the result of
2. right of way obstruction, the easement may be artificial development or proceed from
3. party wall extinguishes by non-user & barred by industrial establishments recently set up,
4. light & view prescription if the action to destroy or are the overflow from irrigation
5. drainage the dike is brought only after more damns, the owner of the lower estate
6. intermediate distance than 10 years shall be entitled to compensation for his
7. easement against nuisance loss or damage
8. lateral & subjacent support
Art. 638. The banks of rivers and streams, even in case they are of private ownership,
Art. 635. All matters concerning easements established for public or communal use are subject throughout their entire length and within a zone of three meters along their
shall be governed by the special laws and regulations relating thereto, and, in the margins, to the easement of public use in the general interest of navigation, floatage,
absence thereof, by the provisions of this Title. fishing and salvage.
Art. 636. Easements established by law in the interest of private persons or for private Estates adjoining the banks of navigable or floatable rivers are, furthermore, subject to
use shall be governed by the provisions of this Title, without prejudice to the provisions the easement of towpath for the exclusive service of river navigation and floatage.
of general or local laws and ordinances for the general welfare. If it be necessary for such purpose to occupy lands of private ownership, the proper
These easements may be modified by agreement of the interested parties, whenever indemnity shall first be paid.
the law does not prohibit it or no injury is suffered by a third person.
River Bank: a lateral strip of shore washed by the water during high tides but w/c
How Legal Easements for Private Interests are Governed cannot be said to be flooded or inundated
1. agreement of interested parties provided not prohibited by law nor prejudicial
to a 3rd person Payment of Indemnity
2. in default of the latter, general/local laws & ordinances for the general welfare 1. NO INDEMNITY – if the land be of public ownership
3. in default of the latter, the Civil Code 2. INDEMNITY – if the land be of private ownership

SECTION 2. - Easements Relating to Waters Art. 639. Whenever for the diversion or taking of water from a river or brook, or for the
use of any other continuous or discontinuous stream, it should be necessary to build a
Art. 637. Lower estates are obliged to receive the waters which naturally and without dam, and the person who is to construct it is not the owner of the banks, or lands
the intervention of man descend from the higher estates, as well as the stones or earth which must support it, he may establish the easement of abutment of a dam, after
which they carry with them. payment of the proper indemnity.
The owner of the lower estate cannot construct works which will impede this easement; Art. 640. Compulsory easements for drawing water or for watering animals can be
neither can the owner of the higher estate make works which will increase the burden. imposed only for reasons of public use in favor of a town or village, after payment of
the proper indemnity.
Legal Easements Relating to Waters
1. natural drainage of lands Easements for Drawing Water or for Watering Animals
2. natural drainage of buildings 1. the can be imposed only for reasons of public use
3. easements on riparian banks for navigation, floatage, fishing salvage 2. they must be in favor of a town or village
4. easement of a dam 3. proper indemnity must be paid
5. easement for drawing water or for watering animals
6. easements of aqueduct Art. 641. Easements for drawing water and for watering animals carry with them the
7. easement for the construction of a stop lock of sluice gate obligation of the owners of the servient estates to allow passage to persons and
animals to the place where such easements are to be used, and the indemnity shall
What Lower Estates are Obliged to Receive include this service.
1. water w/c naturally & w/o the intervention of man descends from the higher
estates
2. the stones & earth carried by the waters